Rule 26. Intervention by Indian Child’s Tribe or Indian Custodian
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(a) In any state court proceeding for the foster care
placement of, or termination of parental rights to, an Indian
child, the Indian custodian of the child and the Indian child’s
tribe shall have the right to intervene at any point in the
proceeding.
(b) The court shall, upon request, provide the service
information of the parties and future hearing information to the
Indian custodian or Indian child’s tribe either in writing or
orally.
(c) Any Indian custodian or Indian child’s tribe seeking to
intervene must file with the court where the matter is pending a
notice of intervention, which should be served on all parties.
The court shall accept a notice of intervention even if it has not
been served on all parties and provide a copy to all parties who
have not been served.
(d) The court has discretion to accept an oral notice of
intervention made on record.
(e) The notice of intervention is effective upon filing.
(f) The court shall issue a written acknowledgment of the
intervention and serve the acknowledgment on all parties.
(g) Any party may respond to a notice of intervention
within 10 days of service. A reply must be filed within 5
business days after service of the response.
Note: The use of the word “notice” instead of “motion” was
purposeful to be consistent with the Indian Child Welfare Act,
which establishes the Indian child’s tribe’s right to intervene as
a party in CINA proceedings. No motion under Civil Rule 24
is required in light of the Indian Child Welfare Act’s clear
language of the express right to intervene. 25 U.S.C. § 1911(c).
APPENDIX
INDIAN CHILD WELFARE ACT
25 U.S.C. §§ 1901—1923, 1951
§ 1901.
Congressional findings.
Recognizing the special relationship between the United
States and the Indian tribes and their members and the Federal
responsibility to Indian people, the Congress finds—
required in light of the Indian Child Welfare Act’s clear
language of the express right to intervene. 25 U.S.C. § 1911(c).
APPENDIX
INDIAN CHILD WELFARE ACT
25 U.S.C. §§ 1901—1923, 1951
§ 1901.
Congressional findings.
Recognizing the special relationship between the United
States and the Indian tribes and their members and the Federal
responsibility to Indian people, the Congress finds—
(1) that clause 3, section 8, article I of the United States
Constitution provides that “The Congress shall have Power * *
* To regulate Commerce * * * with Indian tribes” and, through
this and other constitutional authority, Congress has plenary
power over Indian affairs;
(2) that Congress, through statutes, treaties, and the
general course of dealing with Indian tribes, has assumed the
responsibility for the protection and preservation of Indian
tribes and their resources;
(3) that there is no resource that is more vital to the
continued existence and integrity of Indian tribes than their
children and that the United States has a direct interest, as
trustee, in protecting Indian children who are members of or
are eligible for membership in an Indian tribe;
(4) that an alarmingly high percentage of Indian families
are broken up by the removal, often unwarranted, of their
children from them by nontribal public and private agencies
and that an alarmingly high percentage of such children are
placed in non-Indian foster and adoptive homes and
institutions; and
g Indian children who are members of or
are eligible for membership in an Indian tribe;
(4) that an alarmingly high percentage of Indian families
are broken up by the removal, often unwarranted, of their
children from them by nontribal public and private agencies
and that an alarmingly high percentage of such children are
placed in non-Indian foster and adoptive homes and
institutions; and
(5) that
the
States,
exercising
their
recognized
jurisdiction over Indian child custody proceedings through
administrative and judicial bodies, have often failed to
recognize the essential tribal relations of Indian people and the
cultural and social standards prevailing in Indian communities
and families.
§ 1902. Congressional declaration of policy.
The Congress hereby declares that it is the policy of this
Nation to protect the best interests of Indian children and to
promote the stability and security of Indian tribes and families
by the establishment of minimum Federal standards for the
removal of Indian children from their families and the
placement of such children in foster or adoptive homes which
will reflect the unique values of Indian culture, and by
providing for assistance to Indian tribes in the operation of
child and family service programs.
§ 1903.
Definitions.
For the purposes of this chapter, except as may be
specifically provided otherwise, the term—
(1) “child
custody
proceedings”
shall
mean
and
include—
placement of such children in foster or adoptive homes which
will reflect the unique values of Indian culture, and by
providing for assistance to Indian tribes in the operation of
child and family service programs.
§ 1903.
Definitions.
For the purposes of this chapter, except as may be
specifically provided otherwise, the term—
(1) “child
custody
proceedings”
shall
mean
and
include—
(i) “foster care placement” which shall mean any action
removing an Indian child from its parent or Indian custodian
for temporary placement in a foster home or institution or the
home of a guardian or conservator where the parent or Indian
custodian cannot have the child returned upon demand, but
where parental rights have not been terminated;
(ii) “termination of parental rights” which shall mean any
action resulting in the termination of the parent-child
relationship;
(iii) “preadoptive placement” which shall mean the
permanent placement of an Indian child in a foster home or
institution after the termination of parental rights, but prior to
or in lieu of adoptive placement; and
(iv) “adoptive
placement”
which
shall
mean
the
permanent placement of an Indian child for adoption, including
any action resulting in a final decree of adoption.
Such term or terms shall not include a placement based
upon an act which, if committed by an adult, would be deemed
a crime or upon an award, in a divorce proceeding, of custody
to one of the parents.
(2) “extended family member” shall be as defined by the
law or custom of the Indian child’s tribe or, in the absence of
such law or custom, shall be a person who has reached the age
of eighteen and who is the Indian child’s grandparent, aunt or
uncle, brother or sister, brother-in-law or sister-in-law, niece or
nephew, first or second cousin, or stepparent;
(3) “Indian” means any person who is a member of an
Indian tribe, or who is an Alaska Native and a member of a
Regional Corporation as defined in section 1606 of Title 43;
, shall be a person who has reached the age
of eighteen and who is the Indian child’s grandparent, aunt or
uncle, brother or sister, brother-in-law or sister-in-law, niece or
nephew, first or second cousin, or stepparent;
(3) “Indian” means any person who is a member of an
Indian tribe, or who is an Alaska Native and a member of a
Regional Corporation as defined in section 1606 of Title 43;
(4) “Indian child” means any unmarried person who is
under age eighteen and is either (a) a member of an Indian
tribe or (b) is eligible for membership in an Indian tribe and is
the biological child of a member of an Indian tribe;
(5) “Indian child’s tribe” means (a) the Indian tribe in
which an Indian child is a member or eligible for membership
or (b), in the case of an Indian child who is a member of or
eligible for membership in more than one tribe, the Indian tribe
with which the Indian child has the more significant contacts;
(6) “Indian custodian” means any Indian person who has
legal custody of an Indian child under tribal law or custom or
under State law or to whom temporary physical care, custody,
and control has been transferred by the parent of such child;
(7) “Indian organization” means any group, association,
partnership, corporation, or other legal entity owned or
controlled by Indians, or a majority of whose members are
Indians;
(8) “Indian tribe” means any Indian tribe, band, nation,
or other organized group or community of Indians recognized
as eligible for the services provided to Indians by the Secretary
because of their status as Indians, including any Alaska Native
village as defined in section 1602(c) of Title 43;
(9) “parent” means any biological parent or parents of an
Indian child or any Indian person who has lawfully adopted an
Indian child, including adoptions under tribal law or custom. It
does not include the unwed father where paternity has not been
acknowledged or established;
because of their status as Indians, including any Alaska Native
village as defined in section 1602(c) of Title 43;
(9) “parent” means any biological parent or parents of an
Indian child or any Indian person who has lawfully adopted an
Indian child, including adoptions under tribal law or custom. It
does not include the unwed father where paternity has not been
acknowledged or established;
(10) “reservation” means Indian country as defined in
section 1151 of Title 18 and any lands, not covered under such
section, title to which is either held by the United States in
trust for the benefit of any Indian tribe or individual or held by
any Indian tribe or individual subject to a restriction by the
United States against alienation;
(11) “Secretary” means the Secretary of the Interior; and
(12) “tribal court” means a court with jurisdiction over
child custody proceedings and which is either a Court of Indian
Offenses, a court established and operated under the code or
custom of an Indian tribe, or any other administrative body of a
tribe which is vested with authority over child custody
proceedings.
§ 1911. Indian tribe jurisdiction over Indian child
custody proceedings.
(a) Exclusive jurisdiction.
An Indian tribe shall have jurisdiction exclusive as to any
State over any child custody proceeding involving an Indian
child who resides or is domiciled within the reservation of such
tribe, except where such jurisdiction is otherwise vested in the
State by existing Federal law. Where an Indian child is a ward
of a tribal court, the Indian tribe shall retain exclusive
jurisdiction, notwithstanding the residence or domicile of the
child.
as to any
State over any child custody proceeding involving an Indian
child who resides or is domiciled within the reservation of such
tribe, except where such jurisdiction is otherwise vested in the
State by existing Federal law. Where an Indian child is a ward
of a tribal court, the Indian tribe shall retain exclusive
jurisdiction, notwithstanding the residence or domicile of the
child.
(b) Transfer of proceedings; declination by tribal court.
In any State court proceeding for the foster care placement
of, or termination of parental rights to, an Indian child not
domiciled or residing within the reservation of the Indian
child’s tribe, the court, in the absence of good cause to the
contrary, shall transfer such proceeding to the jurisdiction of
the tribe, absent objection by either parent, upon the petition of
either parent or the Indian custodian or the Indian child’s tribe:
Provided, That such transfer shall be subject to declination by
the tribal court of such tribe.
(c) State court proceedings; intervention.
In any State court proceeding for the foster care placement
of, or termination of parental rights to, an Indian child, the
Indian custodian of the child and the Indian child’s tribe shall
have a right to intervene at any point in the proceeding.
(d) Full faith and credit to public acts, records, and
judicial proceedings of Indian tribes.
The United States, every State, every territory or
possession of the United States, and every Indian tribe shall
give full faith and credit to the public acts, records, and judicial
proceedings of any Indian tribe applicable to Indian child
custody proceedings to the same extent that such entities give
full faith and credit to the public acts, records, and judicial
proceedings of any other entity.
§ 1912.
Pending court proceedings.
ory or
possession of the United States, and every Indian tribe shall
give full faith and credit to the public acts, records, and judicial
proceedings of any Indian tribe applicable to Indian child
custody proceedings to the same extent that such entities give
full faith and credit to the public acts, records, and judicial
proceedings of any other entity.
§ 1912.
Pending court proceedings.
(a) Notice; time for commencement of proceedings;
additional time for preparation.
In any involuntary proceeding in a State court, where the
court knows or has reason to know that an Indian child is
involved, the party seeking the foster care placement of, or
termination of parental rights to, an Indian child shall notify
the parent or Indian custodian and the Indian child’s tribe, by
registered mail with return receipt requested, of the pending
proceedings and of their right of intervention. If the identity or
location of the parent or Indian custodian and the tribe cannot
be determined, such notice shall be given to the Secretary in
like manner, who shall have fifteen days after receipt to
provide the requisite notice to the parent or Indian custodian
and the tribe. No foster care placement or termination of
parental rights proceeding shall be held until at least ten days
after receipt of notice by the parent or Indian custodian and the
tribe or the Secretary: Provided, That the parent or Indian
custodian or the tribe shall, upon request, be granted up to
twenty additional days to prepare for such proceeding.
e parent or Indian custodian
and the tribe. No foster care placement or termination of
parental rights proceeding shall be held until at least ten days
after receipt of notice by the parent or Indian custodian and the
tribe or the Secretary: Provided, That the parent or Indian
custodian or the tribe shall, upon request, be granted up to
twenty additional days to prepare for such proceeding.
(b) Appointment of counsel.
In any case in which the court determines indigency, the
parent or Indian custodian shall have the right to court-
appointed counsel in any removal, placement, or termination
proceeding. The court may, in its discretion, appoint counsel
for the child upon a finding that such appointment is in the best
interest of the child. Where State law makes no provision for
appointment of counsel in such proceedings, the court shall
promptly notify the Secretary upon appointment of counsel,
and the Secretary, upon certification of the presiding judge,
shall pay reasonable fees and expenses out of funds which may
be appropriated pursuant to section 13 of this title.
(c) Examination of reports or other documents.
Each party to a foster care placement or termination of
parental rights proceeding under State law involving an Indian
child shall have the right to examine all reports or other
documents filed with the court upon which any decision with
respect to such action may be based.
(d) Remedial services and rehabilitative programs;
preventive measures.
Any party seeking to effect a foster care placement of, or
termination of parental rights to, an Indian child under State
law shall satisfy the court that active efforts have been made to
provide remedial services and rehabilitative programs designed
to prevent the breakup of the Indian family and that these
efforts have proved unsuccessful.
nd rehabilitative programs;
preventive measures.
Any party seeking to effect a foster care placement of, or
termination of parental rights to, an Indian child under State
law shall satisfy the court that active efforts have been made to
provide remedial services and rehabilitative programs designed
to prevent the breakup of the Indian family and that these
efforts have proved unsuccessful.
(e) Foster
care
placement
orders;
evidence;
determination of damage to child.
No foster care placement may be ordered in such
proceeding in the absence of a determination, supported by
clear and convincing evidence, including testimony of
qualified expert witnesses, that the continued custody of the
child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child.
(f) Parental
rights
termination
orders;
evidence;
determination of damage to child.
No termination of parental rights may be ordered in such
proceeding in the absence of a determination, supported by
evidence beyond a reasonable doubt, including testimony of
qualified expert witnesses, that the continued custody of the
child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child.
§ 1913.
Parental rights, voluntary termination.
(a) Consent;
record;
certification
matters;
invalid
consents.
Where any parent or Indian custodian voluntarily consents
to a foster care placement or to termination of parental rights,
such consent shall not be valid unless executed in writing and
recorded before a judge of a court of competent jurisdiction
and accompanied by the presiding judge’s certificate that the
terms and consequences of the consent were fully explained in
detail and were fully understood by the parent or Indian
custodian
rily consents
to a foster care placement or to termination of parental rights,
such consent shall not be valid unless executed in writing and
recorded before a judge of a court of competent jurisdiction
and accompanied by the presiding judge’s certificate that the
terms and consequences of the consent were fully explained in
detail and were fully understood by the parent or Indian
custodian. The court shall also certify that either the parent or
Indian custodian fully understood the explanation in English or
that it was interpreted into a language that the parent or Indian
custodian understood. Any consent given prior to, or within ten
days after, birth of the Indian child shall not be valid.
(b) Foster care placement; withdrawal of consent.
Any parent or Indian custodian may withdraw consent to a
foster care placement under State law at any time and, upon
such withdrawal, the child shall be returned to the parent or
Indian custodian.
(c) Voluntary termination of parental rights or adoptive
placement; withdrawal of consent; return of custody.
In any voluntary proceeding for termination of parental
rights to, or adoptive placement of, an Indian child, the consent
of the parent may be withdrawn for any reason at any time
prior to the entry of a final degree of termination or adoption,
as the case may be, and the child shall be returned to the
parent.
(d) Collateral attack; vacation of decree and return of
custody; limitations.
After the entry of a final decree of adoption of an Indian
child in any State court, the parent may withdraw consent
thereto upon the grounds that consent was obtained through
fraud or duress and may petition the court to vacate such
decree. Upon a finding that such consent was obtained through
fraud or duress, the court shall vacate such decree and return
the child to the parent. No adoption which has been effective
for at least two years may be invalidated under the provisions
of this subsection unless otherwise permitted under State law.
§ 1914
btained through
fraud or duress and may petition the court to vacate such
decree. Upon a finding that such consent was obtained through
fraud or duress, the court shall vacate such decree and return
the child to the parent. No adoption which has been effective
for at least two years may be invalidated under the provisions
of this subsection unless otherwise permitted under State law.
§ 1914. Petition to court of competent jurisdiction to
invalidate action upon showing of certain
violations.
Any Indian child who is the subject of any action for
foster care placement or termination of parental rights under
State law, any parent or Indian custodian from whose custody
such child was removed, and the Indian child’s tribe may
petition any court of competent jurisdiction to invalidate such
action upon a showing that such action violated any provision
of sections 1911, 1912, and 1913 of this title.
§ 1915.
Placement of Indian children.
(a) Adoptive placements; preferences.
In any adoptive placement of an Indian child under State
law, a preference shall be given, in the absence of good cause
to the contrary, to a placement with (1) a member of the child’s
extended family; (2) other members of the Indian child’s tribe;
or (3) other Indian families.
(b) Foster care or preadoptive placements; criteria;
preferences.
Any child accepted for foster care or preadoptive
placement shall be placed in the least restrictive setting which
most approximates a family and in which his special needs, if
any, may be met. The child shall also be placed within
reasonable proximity to his or her home, taking into account
any special needs of the child. In any foster care or preadoptive
placement, a preference shall be given, in the absence of good
cause to the contrary, to a placement with—
ced in the least restrictive setting which
most approximates a family and in which his special needs, if
any, may be met. The child shall also be placed within
reasonable proximity to his or her home, taking into account
any special needs of the child. In any foster care or preadoptive
placement, a preference shall be given, in the absence of good
cause to the contrary, to a placement with—
(i) a member of the Indian child’s extended family;
(ii) a foster home licensed, approved, or specified by the
Indian child’s tribe;
(iii) an Indian foster home licensed or approved by an
authorized non-Indian licensing authority; or
(iv) an institution for children approved by an Indian tribe
or operated by an Indian organization which has a program
suitable to meet the Indian child’s needs.
(c) Tribal resolution for different order of preference;
personal preference considered; anonymity in application of
preferences.
In the case of a placement under subsection (a) or (b) of
this section, if the Indian child’s tribe shall establish a different
order of preference by resolution, the agency or court effecting
the placement shall follow such order so long as the placement
is the least restrictive setting appropriate to the particular needs
of the child, as provided in subsection (b) of this section.
Where appropriate, the preference of the Indian child or parent
shall be considered: Provided, That where a consenting parent
evidences a desire for anonymity, the court or agency shall
give weight to such desire in applying the preferences.
(d) Social and cultural standards applicable.
The standards to be applied in meeting the preference
requirements of this section shall be the prevailing social and
cultural standards of the Indian community in which the parent
or extended family resides or with which the parent or
extended family members maintain social and cultural ties.
e weight to such desire in applying the preferences.
(d) Social and cultural standards applicable.
The standards to be applied in meeting the preference
requirements of this section shall be the prevailing social and
cultural standards of the Indian community in which the parent
or extended family resides or with which the parent or
extended family members maintain social and cultural ties.
(e) Record of placement; availability.
A record of each such placement, under State law, of an
Indian child shall be maintained by the State in which the
placement was made, evidencing the efforts to comply with the
order of preference specified in this section. Such record shall
be made available at any time upon the request of the Secretary
or the Indian child’s tribe.
§ 1916.
Return of custody.
(a) Petition; best interests of child.
Notwithstanding State law to the contrary, whenever a
final decree of adoption of an Indian child has been vacated or
set aside or the adoptive parents voluntarily consent to the
termination of their parental rights to the child, a biological
parent or prior Indian custodian may petition for return of
custody and the court shall grant such petition unless there is a
showing, in a proceeding subject to the provisions of section
1912 of this title, that such return of custody is not in the best
interests of the child.
(b) Removal
from
foster
care
home;
placement
procedure.
Whenever an Indian child is removed from a foster care
home or institution for the purpose of further foster care,
preadoptive, or adoptive placement, such placement shall be in
accordance with the provisions of this chapter, except in the
case where an Indian child is being returned to the parent or
Indian custodian from whose custody the child was originally
removed.
§ 1917.
Tribal
affiliation
information
and
other
information for protection of rights from tribal
relationship; application of subject of adoptive
placement; disclosure by court
ent shall be in
accordance with the provisions of this chapter, except in the
case where an Indian child is being returned to the parent or
Indian custodian from whose custody the child was originally
removed.
§ 1917.
Tribal
affiliation
information
and
other
information for protection of rights from tribal
relationship; application of subject of adoptive
placement; disclosure by court.
Upon application by an Indian individual who has reached
the age of eighteen and who was the subject of an adoptive
placement, the court which entered the final decree shall
inform such individual of the tribal affiliation, if any, of the
individual’s biological parents and provide such other
information as may be necessary to protect any rights flowing
from the individual’s tribal relationship.
§ 1918. Reassumption of jurisdiction over child
custody proceedings.
(a) Petition; suitable plan; approval by Secretary.
Any Indian tribe which became subject to State
jurisdiction pursuant to the provisions of the Act of August 15,
1953 (67 Stat. 588), as amended by Title IV of the Act of April
11, 1968 (82 Stat. 73, 78), or pursuant to any other Federal
law,
may
reassume
jurisdiction
over
child
custody
proceedings. Before any Indian tribe may reassume jurisdiction
over Indian child custody proceedings, such tribe shall present
to the Secretary for approval a petition to reassume such
jurisdiction which includes a suitable plan to exercise such
jurisdiction.
(b) Criteria applicable to consideration by Secretary;
partial retrocession.
(1) In considering the petition and feasibility of the plan
of a tribe under subsection (a) of this section, the Secretary
may consider, among other things:
such tribe shall present
to the Secretary for approval a petition to reassume such
jurisdiction which includes a suitable plan to exercise such
jurisdiction.
(b) Criteria applicable to consideration by Secretary;
partial retrocession.
(1) In considering the petition and feasibility of the plan
of a tribe under subsection (a) of this section, the Secretary
may consider, among other things:
(i) whether or not the tribe maintains a membership roll
or alternative provision for clearly identifying the persons who
will be affected by the reassumption of jurisdiction by the
tribe;
(ii) the size of the reservation or former reservation area
which will be affected by retrocession and reassumption of
jurisdiction by the tribe;
(iii) the population base of the tribe, or distribution of the
population in homogeneous communities or geographic areas;
and
(iv) the feasibility of the plan in cases of multitribal
occupation of a single reservation or geographic area.
(2) In those cases where the Secretary determines that
the jurisdictional provisions of section 1911(a) of this title are
not feasible, he is authorized to accept partial retrocession
which will enable tribes to exercise referral jurisdiction as
provided in section 1911(b) of this title, or, where appropriate,
will allow them to exercise exclusive jurisdiction as provided
in section 1911(a) of this title over limited community or
geographic areas without regard for the reservation status of
the area affected.
not feasible, he is authorized to accept partial retrocession
which will enable tribes to exercise referral jurisdiction as
provided in section 1911(b) of this title, or, where appropriate,
will allow them to exercise exclusive jurisdiction as provided
in section 1911(a) of this title over limited community or
geographic areas without regard for the reservation status of
the area affected.
(c) Approval of petition; publication in Federal Register;
notice; reassumption period; correction of causes for
disapproval.
If the Secretary approves any petition under subsection (a)
of this section, the Secretary shall publish notice of such
approval in the Federal Register and shall notify the affected
State or States of such approval. The Indian tribe concerned
shall reassume jurisdiction sixty days after publication in the
Federal Register of notice of approval. If the Secretary
disapproves any petition under subsection (a) of this section,
the Secretary shall provide such technical assistance as may be
necessary to enable the tribe to correct any deficiency which
the Secretary identified as a cause for disapproval.
(d) Pending actions or proceedings unaffected.
Assumption of jurisdiction under this section shall not
affect any action or proceeding over which a court has already
assumed jurisdiction, except as may be provided pursuant to
any agreement under section 1919 of this title.
§ 1919.
Agreements between States and Indian
tribes.
(a) Subject coverage.
States and Indian tribes are authorized to enter into
agreements with each other respecting care and custody of
Indian
children
and
jurisdiction
over
child
custody
proceedings, including agreements which may provide for
orderly transfer of jurisdiction on a case-by-case basis and
agreements which provide for concurrent jurisdiction between
States and Indian tribes.
Subject coverage.
States and Indian tribes are authorized to enter into
agreements with each other respecting care and custody of
Indian
children
and
jurisdiction
over
child
custody
proceedings, including agreements which may provide for
orderly transfer of jurisdiction on a case-by-case basis and
agreements which provide for concurrent jurisdiction between
States and Indian tribes.
(b) Revocation;
notice;
actions
or
proceedings
unaffected.
Such agreements may be revoked by either party upon one
hundred and eighty days’ written notice to the other party.
Such revocation shall not affect any action or proceeding over
which a court has already assumed jurisdiction, unless the
agreement provides otherwise.
§ 1920.
Improper removal of child from custody;
declination of jurisdiction; forthwith return of
child: danger exception.
Where any petitioner in an Indian child custody
proceeding before a State court has improperly removed the
child from custody of the parent or Indian custodian or has
improperly retained custody after a visit or other temporary
relinquishment of custody, the court shall decline jurisdiction
over such petition and shall forthwith return the child to his
parent or Indian custodian unless returning the child to his
parent or custodian would subject the child to a substantial and
immediate danger or threat of such danger.
§ 1921.
Higher
State
or
Federal
standard
applicable to protect rights of parent or
Indian custodian of Indian child.
In any case where State or Federal law applicable to a
child custody proceeding under State or Federal law provides a
higher standard of protection to the rights of the parent or
Indian custodian of an Indian child than that rights provided
under this subchapter, the State or Federal court shall apply the
State or Federal standard.
§ 1922.
Emergency removal or placement of child;
termination; appropriate action
e or Federal law applicable to a
child custody proceeding under State or Federal law provides a
higher standard of protection to the rights of the parent or
Indian custodian of an Indian child than that rights provided
under this subchapter, the State or Federal court shall apply the
State or Federal standard.
§ 1922.
Emergency removal or placement of child;
termination; appropriate action.
Nothing in this subchapter shall be construed to prevent
the emergency removal of an Indian child who is a resident of
or is domiciled on a reservation but temporarily located off the
reservation, from his parent or Indian custodian or the
emergency placement of such child in a foster home or
institution, under applicable State law, in order to prevent
imminent physical damage or harm to the child. The State
authority, official, or agency involved shall insure that the
emergency removal or placement terminates immediately
when such removal or placement is no longer necessary to
prevent imminent physical damage or harm to the child and
shall expeditiously initiate a child custody proceeding subject
to the provisions of this subchapter, transfer the child to the
jurisdiction of the appropriate Indian tribe, or restore the child
to the parent or Indian custodian, as may be appropriate.
§ 1923.
Effective date.
None of the provisions of this subchapter, except sections
1911(a), 1918, and 1919 of this title, shall affect a proceeding
under State law for foster care placement, termination of
parental rights, preadoptive placement, or adoptive placement
which was initiated or completed prior to one hundred and
eighty days after November 8, 1978, but shall apply to any
subsequent proceeding in the same matter or subsequent
proceedings affecting the custody or placement of the same
child.
§ 1951.
Information availability to and disclosure by
Secretary.
placement, termination of
parental rights, preadoptive placement, or adoptive placement
which was initiated or completed prior to one hundred and
eighty days after November 8, 1978, but shall apply to any
subsequent proceeding in the same matter or subsequent
proceedings affecting the custody or placement of the same
child.
§ 1951.
Information availability to and disclosure by
Secretary.
(a) Copy of final decree or order, other information;
anonymity affidavit; exemption from Freedom of Information
Act.
Any State court entering a final decree or order in any
Indian child adoptive placement after November 8, 1978, shall
provide the Secretary with a copy of such decree or order
together with such other information as may be necessary to
show—
(1) the name and tribal affiliation of the child;
(2) the names and addresses of the biological parents;
(3) the names and addresses of the adoptive parents; and
(4) the identity of any agency having files or information
relating to such adoptive placement.
Where the court records contain an affidavit of the
biological parent or parents that their identity remain
confidential, the court shall include such affidavit with the
other information. The Secretary shall insure that the
confidentiality of such information is maintained and such
information shall not be subject to the Freedom of Information
Act (5 U.S.C. 552), as amended. (b) Disclosure of information
for enrollment of Indian child in tribe or for determination of
member rights or benefits; certification of entitlement to
enrollment.
Upon the request of the adopted Indian child over the age
of eighteen, the adoptive or foster parents of an Indian child, or
an Indian tribe, the Secretary shall disclose such information as
may be necessary for the enrollment of an Indian child in the
tribe in which the child may be eligible for enrollment or for
determining any rights or benefits associated with that
membership
nrollment.
Upon the request of the adopted Indian child over the age
of eighteen, the adoptive or foster parents of an Indian child, or
an Indian tribe, the Secretary shall disclose such information as
may be necessary for the enrollment of an Indian child in the
tribe in which the child may be eligible for enrollment or for
determining any rights or benefits associated with that
membership. Where the documents relating to such child
contain an affidavit from the biological parent or parents
requesting anonymity, the Secretary shall certify to the Indian
child’s tribe, where the information warrants, that the child’s
parentage and other circumstances of birth entitle the child to
enrollment under the criteria established by such tribe.
(Pub. L. 95-608. Title III. § 301, Nov. 8, 1978, 92 Stat.
3077).
INDIAN CHILD WELFARE ACT REGULATIONS
25 C.F.R. Part 23, published at 81 Fed. Reg. 38778 (June 14,
2016) and effective December 12, 2016.
From Subpart A—Purpose, Definitions, and Policy
§ 23.2 Definitions.
Act means the Indian Child Welfare Act (ICWA), Pub. L. 95-
608, 92 Stat. 3069, 25 U.S.C. 1901 et seq.
Active efforts means affirmative, active, thorough, and timely
efforts intended primarily to maintain or reunite an Indian
child with his or her family. Where an agency is involved in
the child-custody proceeding, active efforts must involve
assisting the parent or parents or Indian custodian through the
steps of a case plan and with accessing or developing the
resources necessary to satisfy the case plan. To the maximum
extent possible, active efforts should be provided in a manner
consistent with the prevailing social and cultural conditions
and way of life of the Indian child's Tribe and should be
conducted in partnership with the Indian child and the Indian
child's parents, extended family members, Indian custodians,
and Tribe. Active efforts are to be tailored to the facts and
circumstances of the case and may include, for example:
s should be provided in a manner
consistent with the prevailing social and cultural conditions
and way of life of the Indian child's Tribe and should be
conducted in partnership with the Indian child and the Indian
child's parents, extended family members, Indian custodians,
and Tribe. Active efforts are to be tailored to the facts and
circumstances of the case and may include, for example:
(1)
Conducting
a
comprehensive
assessment
of
the
circumstances of the Indian child's family, with a focus on safe
reunification as the most desirable goal;
(2) Identifying appropriate services and helping the parents to
overcome barriers, including actively assisting the parents in
obtaining such services;
(3) Identifying, notifying, and inviting representatives of the
Indian child's Tribe to participate in providing support and
services to the Indian child's family and in family team
meetings, permanency planning, and resolution of placement
issues;
(4) Conducting or causing to be conducted a diligent search for
the Indian child's extended family members, and contacting
and consulting with extended family members to provide
family structure and support for the Indian child and the Indian
child's parents;
(5) Offering and employing all available and culturally
appropriate family preservation strategies and facilitating the
use of remedial and rehabilitative services provided by the
child's Tribe;
(6) Taking steps to keep siblings together whenever possible;
(7) Supporting regular visits with parents or Indian custodians
in the most natural setting possible as well as trial home visits
of the Indian child during any period of removal, consistent
with the need to ensure the health, safety, and welfare of the
child;
f remedial and rehabilitative services provided by the
child's Tribe;
(6) Taking steps to keep siblings together whenever possible;
(7) Supporting regular visits with parents or Indian custodians
in the most natural setting possible as well as trial home visits
of the Indian child during any period of removal, consistent
with the need to ensure the health, safety, and welfare of the
child;
(8) Identifying community resources including housing,
financial, transportation, mental health, substance abuse, and
peer support services and actively assisting the Indian child's
parents or, when appropriate, the child's family, in utilizing
and accessing those resources;
(9) Monitoring progress and participation in services;
(10) Considering alternative ways to address the needs of the
Indian child's parents and, where appropriate, the family, if the
optimum services do not exist or are not available;
(11) Providing post-reunification services and monitoring.
Assistant Secretary means the Assistant Secretary—Indian
Affairs, the Department of the Interior.
Bureau of Indian Affairs (BIA) means the Bureau of Indian
Affairs, the Department of the Interior.
Child-custody proceeding. (1) “Child-custody proceeding”
means and includes any action, other than an emergency
proceeding, that may culminate in one of the following
outcomes:
(i) Foster-care placement, which is any action removing an
Indian child from his or her parent or Indian custodian for
temporary placement in a foster home or institution or the
home of a guardian or conservator where the parent or Indian
custodian cannot have the child returned upon demand, but
where parental rights have not been terminated;
(ii) Termination of parental rights, which is any action
resulting in the termination of the parent-child relationship;
from his or her parent or Indian custodian for
temporary placement in a foster home or institution or the
home of a guardian or conservator where the parent or Indian
custodian cannot have the child returned upon demand, but
where parental rights have not been terminated;
(ii) Termination of parental rights, which is any action
resulting in the termination of the parent-child relationship;
(iii) Preadoptive placement, which is the temporary placement
of an Indian child in a foster home or institution after the
termination of parental rights, but prior to or in lieu of adoptive
placement; or
(iv) Adoptive placement, which is the permanent placement of
an Indian child for adoption, including any action resulting in a
final decree of adoption.
(2) An action that may culminate in one of these four outcomes
is considered a separate child-custody proceeding from an
action that may culminate in a different one of these four
outcomes. There may be several child-custody proceedings
involving any given Indian child. Within each child-custody
proceeding, there may be several hearings. If a child is placed
in foster care or another out-of-home placement as a result of a
status offense, that status offense proceeding is a child-custody
proceeding.
Consortium means an association or partnership of two or
more eligible applicants who enter into an agreement to
administer a grant program and to provide services under the
grant to Indian residents in a specific geographical area when it
is administratively feasible to provide an adequate level of
services within the area.
Continued custody means physical custody or legal custody or
both, under any applicable Tribal law or Tribal custom or State
law, that a parent or Indian custodian already has or had at any
point in the past. The biological mother of a child has had
custody of a child.
Custody means physical custody or legal custody or both,
under any applicable Tribal law or Tribal custom or State law
rea.
Continued custody means physical custody or legal custody or
both, under any applicable Tribal law or Tribal custom or State
law, that a parent or Indian custodian already has or had at any
point in the past. The biological mother of a child has had
custody of a child.
Custody means physical custody or legal custody or both,
under any applicable Tribal law or Tribal custom or State law.
A party may demonstrate the existence of custody by looking
to Tribal law or Tribal custom or State law.
Domicile means:
(1) For a parent or Indian custodian, the place at which a
person has been physically present and that the person regards
as home; a person's true, fixed, principal, and permanent home,
to which that person intends to return and remain indefinitely
even though the person may be currently residing elsewhere.
(2) For an Indian child, the domicile of the Indian child's
parents or Indian custodian or guardian. In the case of an
Indian child whose parents are not married to each other, the
domicile of the Indian child's custodial parent.
Emergency proceeding means and includes any court action
that involves an emergency removal or emergency placement
of an Indian child.
Extended family member is defined by the law or custom of the
Indian child's Tribe or, in the absence of such law or custom, is
a person who has reached age 18 and who is the Indian child's
grandparent, aunt or uncle, brother or sister, brother-in-law or
sister-in-law, niece or nephew, first or second cousin, or
stepparent.
Grant means a written agreement between the BIA and the
governing body of an Indian tribe or Indian organization
wherein the BIA provides funds to the grantee to plan, conduct
or administer specific programs, services, or activities and
where the administrative and programmatic provisions are
specifically delineated.
Grantee means the tribal governing body of an Indian tribe or
Board of Directors of an Indian organization responsible for
grant administration
y of an Indian tribe or Indian organization
wherein the BIA provides funds to the grantee to plan, conduct
or administer specific programs, services, or activities and
where the administrative and programmatic provisions are
specifically delineated.
Grantee means the tribal governing body of an Indian tribe or
Board of Directors of an Indian organization responsible for
grant administration.
Grants officer means an officially designated officer who
administers ICWA grants awarded by the Bureau of Indian
Affairs, the Department of the Interior.
Hearing means a judicial session held for the purpose of
deciding issues of fact, of law, or both.
Indian means any person who is a member of an Indian tribe,
or who is an Alaska Native and a member of a Regional
Corporation as defined in section 7 of the Alaska Native
Claims Settlement Act, 43 U.S.C. 1606.
Indian child means any unmarried person who is under age 18
and either:
(1) Is a member or citizen of an Indian Tribe; or
(2) Is eligible for membership or citizenship in an Indian Tribe
and is the biological child of a member/citizen of an Indian
Tribe.
Indian child's Tribe means:
(1) The Indian Tribe in which an Indian child is a member or
eligible for membership; or
(2) In the case of an Indian child who is a member of or
eligible for membership in more than one Tribe, the Indian
Tribe described in §23.109.
Indian custodian means any Indian who has legal custody of
an Indian child under applicable Tribal law or custom or under
applicable State law, or to whom temporary physical care,
custody, and control has been transferred by the parent of such
child. An Indian may demonstrate that he or she is an Indian
custodian by looking to Tribal law or Tribal custom or State
law.
Indian foster home means a foster home where one or more of
the licensed or approved foster parents is an “Indian” as
defined in 25 U.S.C. 1903(3)
plicable State law, or to whom temporary physical care,
custody, and control has been transferred by the parent of such
child. An Indian may demonstrate that he or she is an Indian
custodian by looking to Tribal law or Tribal custom or State
law.
Indian foster home means a foster home where one or more of
the licensed or approved foster parents is an “Indian” as
defined in 25 U.S.C. 1903(3).
Indian organization, solely for purposes of eligibility for
grants under subpart D of this part, means any legally
established group, association, partnership, corporation, or
other legal entity which is owned or controlled by Indians, or a
majority (51 percent or more) of whose members are Indians.
Indian preference means preference and opportunities for
employment and training provided to Indians in the
administration of grants in accordance with section 7 (b) of the
Indian Self-Determination and Education Assistance Act (25
U.S.C. 450).
Indian tribe means any Indian tribe, band, nation, or other
organized group or community of Indians federally recognized
as eligible for the services provided to Indians by the Secretary
because of their status as Indians, including any Alaska Native
village as defined in section 3 (c) of the Alaska Native Claims
Settlement Act, 43 U.S.C. 1602 (c).
Involuntary proceeding means a child-custody proceeding in
which the parent does not consent of his or her free will to the
foster-care, preadoptive, or adoptive placement or termination
of parental rights or in which the parent consents to the foster-
care, preadoptive, or adoptive placement under threat of
removal of the child by a State court or agency.
Off-reservation ICWA program means an ICWA program
administered in accordance with 25 U.S.C. 1932 by an off-
reservation Indian organization.
Parent or parents means any biological parent or parents of an
Indian child, or any Indian who has lawfully adopted an Indian
child, including adoptions under Tribal law or custom
acement under threat of
removal of the child by a State court or agency.
Off-reservation ICWA program means an ICWA program
administered in accordance with 25 U.S.C. 1932 by an off-
reservation Indian organization.
Parent or parents means any biological parent or parents of an
Indian child, or any Indian who has lawfully adopted an Indian
child, including adoptions under Tribal law or custom. It does
not include an unwed biological father where paternity has not
been acknowledged or established.
Reservation means Indian country as defined in 18 U.S.C 1151
and any lands, not covered under that section, title to which is
held by the United States in trust for the benefit of any Indian
Tribe or individual or held by any Indian Tribe or individual
subject to a restriction by the United States against alienation.
Secretary means the Secretary of the Interior or the Secretary's
authorized representative acting under delegated authority.
Service areas solely for newly recognized or restored Indian
tribes without established reservations means those service
areas congressionally established by Federal law to be the
equivalent of a reservation for the purpose of determining the
eligibility of a newly recognized or restored Indian tribe and its
members for all Federal services and benefits.
State court means any agent or agency of a state, including the
District of Columbia or any territory or possession of the
United States, or any political subdivision empowered by law
to terminate parental rights or to make foster care placements,
preadoptive placements, or adoptive placements.
Status offenses mean offenses that would not be considered
criminal if committed by an adult; they are acts prohibited only
because of a person's status as a minor (e.g., truancy,
incorrigibility)
ry or possession of the
United States, or any political subdivision empowered by law
to terminate parental rights or to make foster care placements,
preadoptive placements, or adoptive placements.
Status offenses mean offenses that would not be considered
criminal if committed by an adult; they are acts prohibited only
because of a person's status as a minor (e.g., truancy,
incorrigibility).
Subgrant means a secondary grant that undertakes part of the
obligations of the primary grant, and assumes the legal and
financial responsibility for the funds awarded and for the
performance of the grant-supported activity.
Technical assistance means the provision of oral, written, or
other relevant information and assistance to prospective grant
applicants in the development of their grant proposals.
Technical assistance may include a preliminary review of an
application to assist the applicant in identifying the strengths
and weaknesses of the proposal, ongoing program planning,
design and evaluation, and such other program-specific
assistance as is necessary for ongoing grant administration and
management.
Title II means title II of Public Law 95-608, the Indian Child
Welfare Act of 1978, which authorizes the Secretary to make
grants to Indian tribes and off-reservation Indian organizations
for the establishment and operation of Indian child and family
service programs.
Tribal court means a court with jurisdiction over child-custody
proceedings and which is either a Court of Indian Offenses, a
court established and operated under the code or custom of an
Indian Tribe, or any other administrative body of a Tribe
vested with authority over child-custody proceedings.
Tribal government means the federally recognized governing
body of an Indian tribe.
Upon demand means that the parent or Indian custodian can
regain custody simply upon verbal request, without any
formalities or contingencies
established and operated under the code or custom of an
Indian Tribe, or any other administrative body of a Tribe
vested with authority over child-custody proceedings.
Tribal government means the federally recognized governing
body of an Indian tribe.
Upon demand means that the parent or Indian custodian can
regain custody simply upon verbal request, without any
formalities or contingencies.
Value means face, par, or market value, or cost price, either
wholesale or retail, whichever is greater.
Voluntary proceeding means a child-custody proceeding that is
not an involuntary proceeding, such as a proceeding for foster-
care, preadoptive, or adoptive placement that either parent,
both parents, or the Indian custodian has, of his or her or their
free will, without a threat of removal by a State agency,
consented to for the Indian child, or a proceeding for voluntary
termination of parental rights.
[59 FR 2256, Jan. 13, 1994, as amended at 81 FR 38864, June
14, 2016]
From Subpart B—Notice of Involuntary Child Custody
Proceedings and Payment for Appointed Counsel in State
Courts
§ 23.11 Notice.
(a) In any involuntary proceeding in a State court where the
court knows or has reason to know that an Indian child is
involved, and where the identity and location of the child's
parent or Indian custodian or Tribe is known, the party seeking
the foster-care placement of, or termination of parental rights
to, an Indian child must directly notify the parents, the Indian
custodians, and the child's Tribe by registered or certified mail
with return receipt requested, of the pending child-custody
proceedings and their right of intervention. Notice must
include the requisite information identified in §23.111,
consistent
with
the
confidentiality
requirement
in
§23.111(d)(6)(ix)
arental rights
to, an Indian child must directly notify the parents, the Indian
custodians, and the child's Tribe by registered or certified mail
with return receipt requested, of the pending child-custody
proceedings and their right of intervention. Notice must
include the requisite information identified in §23.111,
consistent
with
the
confidentiality
requirement
in
§23.111(d)(6)(ix). Copies of these notices must be sent to the
appropriate Regional Director listed in paragraphs (b)(1)
through (12) of this section by registered or certified mail with
return receipt requested or by personal delivery and must
include the information required by §23.111.
(b)(1) For child-custody proceedings in Alabama, Connecticut,
Delaware, District of Columbia, Florida, Georgia, Kentucky,
Louisiana, Maine, Maryland, Massachusetts, Mississippi, New
Hampshire, New Jersey, New York, North Carolina,
Pennsylvania, Rhode Island, South Carolina, Tennessee,
Vermont, Virginia, West Virginia, or any territory or
possession of the United States, notices must be sent to the
following address: Eastern Regional Director, Bureau of Indian
Affairs, 545 Marriott Drive, Suite 700, Nashville, Tennessee
37214.
(2) For child-custody proceedings in Illinois, Indiana, Iowa,
Michigan, Minnesota, Ohio, or Wisconsin, notices must be
sent to the following address: Minneapolis Regional Director,
Bureau of Indian Affairs, 331 Second Avenue South,
Minneapolis, Minnesota 55401-2241.
(3) For child-custody proceedings in Nebraska, North Dakota,
or South Dakota, notices must be sent to the following address:
Aberdeen Regional Director, Bureau of Indian Affairs, 115
Fourth Avenue SE., Aberdeen, South Dakota 57401.
ices must be
sent to the following address: Minneapolis Regional Director,
Bureau of Indian Affairs, 331 Second Avenue South,
Minneapolis, Minnesota 55401-2241.
(3) For child-custody proceedings in Nebraska, North Dakota,
or South Dakota, notices must be sent to the following address:
Aberdeen Regional Director, Bureau of Indian Affairs, 115
Fourth Avenue SE., Aberdeen, South Dakota 57401.
(4) For child-custody proceedings in Kansas, Texas (except for
notices to the Ysleta del Sur Pueblo of El Paso County, Texas),
or the western Oklahoma counties of Alfalfa, Beaver,
Beckman, Blaine, Caddo, Canadian, Cimarron, Cleveland,
Comanche, Cotton, Custer, Dewey, Ellis, Garfield, Grant,
Greer, Harmon, Harper, Jackson, Kay, Kingfisher, Kiowa,
Lincoln, Logan, Major, Noble, Oklahoma, Pawnee, Payne,
Pottawatomie, Roger Mills, Texas, Tillman, Washita, Woods
or Woodward, notices must be sent to the following address:
Anadarko Regional Director, Bureau of Indian Affairs, P.O.
Box 368, Anadarko, Oklahoma 73005. Notices to the Ysleta
del Sur Pueblo must be sent to the Albuquerque Regional
Director at the address listed in paragraph (b)(6) of this
section.
(5) For child-custody proceedings in Wyoming or Montana
(except for notices to the Confederated Salish and Kootenai
Tribes of the Flathead Reservation, Montana), notices must be
sent to the following address: Billings Regional Director,
Bureau of Indian Affairs, 316 N. 26th Street, Billings,
Montana 59101. Notices to the Confederated Salish and
Kootenai Tribes of the Flathead Reservation, Montana, must
be sent to the Portland Regional Director at the address listed
in paragraph (b)(11) of this section.
Tribes of the Flathead Reservation, Montana), notices must be
sent to the following address: Billings Regional Director,
Bureau of Indian Affairs, 316 N. 26th Street, Billings,
Montana 59101. Notices to the Confederated Salish and
Kootenai Tribes of the Flathead Reservation, Montana, must
be sent to the Portland Regional Director at the address listed
in paragraph (b)(11) of this section.
(6) For child-custody proceedings in the Texas counties of El
Paso and Hudspeth or in Colorado or New Mexico (exclusive
of notices to the Navajo Nation from the New Mexico counties
listed in paragraph (b)(9) of this section), notices must be sent
to the following address: Albuquerque Regional Director,
Bureau of Indian Affairs, 615 First Street, P.O. Box 26567,
Albuquerque, New Mexico 87125. Notices to the Navajo
Nation must be sent to the Navajo Regional Director at the
address listed in paragraph (b)(9) of this section.
(7) For child-custody proceedings in Alaska (except for notices
to the Metlakatla Indian Community, Annette Island Reserve,
Alaska), notices must be sent to the following address: Juneau
Regional Director, Bureau of Indian Affairs, 709 West 9th
Street, Juneau, Alaska 99802-1219. Notices to the Metlakatla
Indian Community, Annette Island Reserve, Alaska, must be
sent to the Portland Regional Director at the address listed in
paragraph (b)(11) of this section.
(8) For child-custody proceedings in Arkansas, Missouri, or
the eastern Oklahoma counties of Adair, Atoka, Bryan, Carter,
Cherokee, Craig, Creek, Choctaw, Coal, Delaware, Garvin,
Grady, Haskell, Hughes, Jefferson, Johnson, Latimer, LeFlore,
Love, Mayes, McCurtain, McClain, McIntosh, Murray,
Muskogee, Nowata, Okfuskee, Okmulgee, Osage, Ottawa,
Pittsburg, Pontotoc, Pushmataha, Marshall, Rogers, Seminole,
Sequoyah, Stephens, Tulsa, Wagoner, or Washington, notices
must be sent to the following address: Muskogee Regional
Director, Bureau of Indian Affairs, 101 North Fifth Street,
Muskogee, Oklahoma 74401.
ohnson, Latimer, LeFlore,
Love, Mayes, McCurtain, McClain, McIntosh, Murray,
Muskogee, Nowata, Okfuskee, Okmulgee, Osage, Ottawa,
Pittsburg, Pontotoc, Pushmataha, Marshall, Rogers, Seminole,
Sequoyah, Stephens, Tulsa, Wagoner, or Washington, notices
must be sent to the following address: Muskogee Regional
Director, Bureau of Indian Affairs, 101 North Fifth Street,
Muskogee, Oklahoma 74401.
(9) For child-custody proceedings in the Arizona counties of
Apache, Coconino (except for notices to the Hopi Tribe of
Arizona and the San Juan Southern Paiute Tribe of Arizona) or
Navajo (except for notices to the Hopi Tribe of Arizona); the
New Mexico counties of McKinley (except for notices to the
Zuni Tribe of the Zuni Reservation), San Juan, or Socorro; or
the Utah county of San Juan, notices must be sent to the
following address: Navajo Regional Director, Bureau of Indian
Affairs, P.O. Box 1060, Gallup, New Mexico 87301. Notices
to the Hopi and San Juan Southern Paiute Tribes of Arizona
must be sent to the Phoenix Regional Director at the address
listed in paragraph (b)(10) of this section. Notices to the Zuni
Tribe of the Zuni Reservation must be sent to the Albuquerque
Regional Director at the address listed in paragraph (b)(6 of
this section).
(10) For child-custody proceedings in Arizona (exclusive of
notices to the Navajo Nation from those counties listed in
paragraph (b)(9) of this section), Nevada, or Utah (exclusive of
San Juan County), notices must be sent to the following
address: Phoenix Regional Director, Bureau of Indian Affairs,
1 North First Street, P.O. Box 10, Phoenix, Arizona 85001.
ragraph (b)(6 of
this section).
(10) For child-custody proceedings in Arizona (exclusive of
notices to the Navajo Nation from those counties listed in
paragraph (b)(9) of this section), Nevada, or Utah (exclusive of
San Juan County), notices must be sent to the following
address: Phoenix Regional Director, Bureau of Indian Affairs,
1 North First Street, P.O. Box 10, Phoenix, Arizona 85001.
(11) For child-custody proceedings in Idaho, Oregon, or
Washington, notices must be sent to the following address:
Portland Regional Director, Bureau of Indian Affairs, 911 NE
11th Avenue, Portland, Oregon 97232. All notices to the
Confederated Salish and Kootenai Tribes of the Flathead
Reservation, located in the Montana counties of Flathead,
Lake, Missoula, and Sanders, must also be sent to the Portland
Regional Director.
(12) For child-custody proceedings in California or Hawaii,
notices must be sent to the following address: Sacramento
Regional Director, Bureau of Indian Affairs, Federal Office
Building, 2800 Cottage Way, Sacramento, California 95825.
(c) Upon receipt of the notice, the Secretary will make
reasonable documented efforts to locate and notify the child's
Tribe and the child's parent or Indian custodian. The Secretary
will have 15 days, after receipt of the notice, to notify the
child's Tribe and parents or Indian custodians and to send a
copy of the notice to the court. If within the 15-day period the
Secretary is unable to verify that the child meets the criteria of
an Indian child as defined in §23.2, or is unable to locate the
parents or Indian custodians, the Secretary will so inform the
court and state how much more time, if any, will be needed to
complete the verification or the search. The Secretary will
complete all research efforts, even if those efforts cannot be
completed before the child-custody proceeding begins.
child meets the criteria of
an Indian child as defined in §23.2, or is unable to locate the
parents or Indian custodians, the Secretary will so inform the
court and state how much more time, if any, will be needed to
complete the verification or the search. The Secretary will
complete all research efforts, even if those efforts cannot be
completed before the child-custody proceeding begins.
(d) Upon request from a party to an Indian child-custody
proceeding, the Secretary will make a reasonable attempt to
identify and locate the child's Tribe, parents, or Indian
custodians to assist the party seeking the information.
[81 FR 38866, June 14, 2016]
Subpart I—Indian Child Welfare Act Proceedings
General Provisions
§23.101 What is the purpose of this subpart?
The regulations in this subpart clarify the minimum Federal
standards governing implementation of the Indian Child
Welfare Act (ICWA) to ensure that ICWA is applied in all
States consistent with the Act's express language, Congress's
intent in enacting the statute, and to promote the stability and
security of Indian tribes and families.
§23.102 What terms do I need to know?
The following terms and their definitions apply to this subpart.
All other terms have the meanings assigned in §23.2.
Agency means a nonprofit, for-profit, or governmental
organization and its employees, agents, or officials that
performs, or provides services to biological parents, foster
parents, or adoptive parents to assist in the administrative and
social work necessary for foster, preadoptive, or adoptive
placements.
Indian organization means any group, association, partnership,
corporation, or other legal entity owned or controlled by
Indians or a Tribe, or a majority of whose members are
Indians.
§23.103 When does ICWA apply?
(a) ICWA includes requirements that apply whenever an
Indian child is the subject of:
(1) A child-custody proceeding, including:
r foster, preadoptive, or adoptive
placements.
Indian organization means any group, association, partnership,
corporation, or other legal entity owned or controlled by
Indians or a Tribe, or a majority of whose members are
Indians.
§23.103 When does ICWA apply?
(a) ICWA includes requirements that apply whenever an
Indian child is the subject of:
(1) A child-custody proceeding, including:
(i) An involuntary proceeding;
(ii) A voluntary proceeding that could prohibit the parent
or Indian custodian from regaining custody of the child upon
demand; and
(iii) A proceeding involving status offenses if any part of
the proceeding results in the need for out-of-home placement
of the child, including a foster-care, preadoptive, or adoptive
placement, or termination of parental rights.
(2) An emergency proceeding.
(b) ICWA does not apply to:
(1) A Tribal court proceeding;
(2) A proceeding regarding a criminal act that is not a status
offense;
(3) An award of custody of the Indian child to one of the
parents including, but not limited to, an award in a divorce
proceeding; or
(4) A voluntary placement that either parent, both parents, or
the Indian custodian has, of his or her or their free will, without
a threat of removal by a State agency, chosen for the Indian
child and that does not operate to prohibit the child's parent or
Indian custodian from regaining custody of the child upon
demand.
(c) If a proceeding listed in paragraph (a) of this section
concerns a child who meets the statutory definition of “Indian
child,” then ICWA will apply to that proceeding. In
determining whether ICWA applies to a proceeding, the State
court may not consider factors such as the participation of the
parents or the Indian child in Tribal cultural, social, religious,
or political activities, the relationship between the Indian child
and his or her parents, whether the parent ever had custody of
the child, or the Indian child's blood quantum.
y to that proceeding. In
determining whether ICWA applies to a proceeding, the State
court may not consider factors such as the participation of the
parents or the Indian child in Tribal cultural, social, religious,
or political activities, the relationship between the Indian child
and his or her parents, whether the parent ever had custody of
the child, or the Indian child's blood quantum.
(d) If ICWA applies at the commencement of a proceeding, it
will not cease to apply simply because the child reaches age 18
during the pendency of the proceeding.
§23.104 What provisions of this subpart apply to each
type of child-custody proceeding?
The following table lists what sections of this subpart apply to
each type of child-custody proceeding identified in §23.103(a):
Section
Type of proceeding
23.101-23.106 (General Provisions)
Emergency,
Involuntary,
Voluntary.
Pretrial Requirements:
23.107 (How should a State court
determine if there is reason to know the
child is an Indian child?)
Emergency,
Involuntary,
Voluntary.
23.108 (Who makes the determination
as to whether a child is a member
whether a child is eligible for
membership, or whether a biological
parent is a member of a Tribe?)
Emergency,
Involuntary,
Voluntary.
23.109 (How should a State court
determine an Indian child's Tribe when
the child may be a member or eligible
for membership in more than one
Tribe?)
Emergency,
Involuntary,
Voluntary.
23.110 (When must a State court
dismiss an action?)
Involuntary,
Voluntary.
23.111 (What are the notice
requirements for a child-custody
proceeding involving an Indian child?)
Involuntary (foster-
care placement and
termination of
Section
Type of proceeding
parental rights).
23.112 (What time limits and
extensions apply?)
Involuntary (foster-
care placement and
termination of
parental rights).
23.113 (What are the standards for
emergency proceedings involving an
Indian child?)
Emergency
quirements for a child-custody
proceeding involving an Indian child?)
Involuntary (foster-
care placement and
termination of
Section
Type of proceeding
parental rights).
23.112 (What time limits and
extensions apply?)
Involuntary (foster-
care placement and
termination of
parental rights).
23.113 (What are the standards for
emergency proceedings involving an
Indian child?)
Emergency.
23.114 (What are the requirements for
determining improper removal?)
Involuntary.
Petitions to Transfer to Tribal Court:
23.115 (How are petitions for transfer
of a proceeding made?)
Involuntary,
Voluntary (foster-care
placement and
termination of
parental rights).
23.116 (What happens after a petition
for transfer is made?)
Involuntary,
Voluntary (foster-care
placement and
termination of
parental rights).
23.117 (What are the criteria for ruling
on transfer petitions?)
Involuntary,
Voluntary (foster-care
placement and
termination of
parental rights).
23.118 (How is a determination of
“good cause” to deny transfer made?)
Involuntary,
Voluntary (foster-care
placement and
termination of
parental rights).
23.119 (What happens after a petition
for transfer is granted?)
Involuntary,
Voluntary (foster-care
placement and
termination of
parental rights).
Adjudication of Involuntary
Proceedings:
23.120 (How does the State court
ensure that active efforts have been
made?)
Involuntary (foster-
care placement and
termination of
parental rights).
23.121 (What are the applicable
standards of evidence?)
Involuntary (foster-
care placement and
termination of
parental rights).
23.122 (Who may serve as a qualified
expert witness?)
Involuntary (foster-
care placement and
termination of
parental rights).
Section
Type of proceeding
23.123 Reserved
N/A.
Voluntary Proceedings:
23.124 (What actions must a State court
undertake in voluntary proceedings?)
Voluntary.
23.125 (How is consent obtained?)
Voluntary
-
care placement and
termination of
parental rights).
23.122 (Who may serve as a qualified
expert witness?)
Involuntary (foster-
care placement and
termination of
parental rights).
Section
Type of proceeding
23.123 Reserved
N/A.
Voluntary Proceedings:
23.124 (What actions must a State court
undertake in voluntary proceedings?)
Voluntary.
23.125 (How is consent obtained?)
Voluntary.
23.126 (What information must a
consent document contain?)
Voluntary.
23.127 (How is withdrawal of consent
to a foster-care placement achieved?)
Voluntary.
23.128 (How is withdrawal of consent
to a termination of parental rights or
adoption achieved?)
Voluntary.
Dispositions:
23.129 (When do the placement
preferences apply?)
Involuntary,
Voluntary.
23.130 (What placement preferences
apply in adoptive placements?)
Involuntary,
Voluntary.
23.131 (What placement preferences
apply in foster-care or preadoptive
placements?)
Involuntary,
Voluntary.
23.132 (How is a determination of
“good cause” to depart from the
placement preferences made?)
Involuntary,
Voluntary.
Access:
23.133 (Should courts allow
participation by alternative methods?)
Emergency,
Involuntary.
23.134 (Who has access to reports and
records during a proceeding?)
Emergency,
Involuntary.
23.135 Reserved.
N/A.
Post-Trial Rights & Responsibilities:
23.136 (What are the requirements for
vacating an adoption based on consent
having been obtained through fraud or
duress?)
Involuntary (if
consent given under
threat of removal),
voluntary.
23.137 (Who can petition to invalidate
an action for certain ICWA violations?)
Emergency (to extent
it involved a specified
violation),
involuntary,
voluntary.
23.138 (What are the rights to
information about adoptees' Tribal
affiliations?)
Emergency,
Involuntary,
Voluntary.
23.139 (Must notice be given of a
change in an adopted Indian child's
status?)
Involuntary,
Voluntary
ary.
23.137 (Who can petition to invalidate
an action for certain ICWA violations?)
Emergency (to extent
it involved a specified
violation),
involuntary,
voluntary.
23.138 (What are the rights to
information about adoptees' Tribal
affiliations?)
Emergency,
Involuntary,
Voluntary.
23.139 (Must notice be given of a
change in an adopted Indian child's
status?)
Involuntary,
Voluntary.
Section
Type of proceeding
Recordkeeping:
23.140 (What information must States
furnish to the Bureau of Indian
Affairs?)
Involuntary,
Voluntary.
23.141 (What records must the State
maintain?)
Involuntary,
Voluntary.
23.142 (How does the Paperwork
Reduction Act affect this subpart?)
Emergency,
Involuntary,
Voluntary.
Effective Date:
23.143 (How does this subpart apply to
pending proceedings?)
Emergency,
Involuntary,
Voluntary.
Severability:
23.144 (What happens if some portion
of part is held to be invalid by a court
of competent jurisdiction?)
Emergency,
Involuntary,
Voluntary.
Note: For purposes of this table, status-offense child-custody
proceedings are included as a type of involuntary proceeding.
§23.105 How do I contact a Tribe under the regulations in
this subpart?
To contact a Tribe to provide notice or obtain information or
verification under the regulations in this subpart, you should
direct the notice or inquiry as follows:
(a) Many Tribes designate an agent for receipt of ICWA
notices. The BIA publishes a list of Tribes' designated Tribal
agents for service of ICWA notice in the FEDERAL REGISTER
each year and makes the list available on its Web site at
www.bia.gov.
(b) For a Tribe without a designated Tribal agent for service of
ICWA notice, contact the Tribe to be directed to the
appropriate office or individual.
ny Tribes designate an agent for receipt of ICWA
notices. The BIA publishes a list of Tribes' designated Tribal
agents for service of ICWA notice in the FEDERAL REGISTER
each year and makes the list available on its Web site at
www.bia.gov.
(b) For a Tribe without a designated Tribal agent for service of
ICWA notice, contact the Tribe to be directed to the
appropriate office or individual.
(c) If you do not have accurate contact information for a Tribe,
or the Tribe contacted fails to respond to written inquiries, you
should seek assistance in contacting the Indian Tribe from the
BIA local or regional office or the BIA's Central Office in
Washington, DC (see www.bia.gov).
§23.106 How does this subpart interact with State and
Federal laws?
(a) The regulations in this subpart provide minimum Federal
standards to ensure compliance with ICWA.
(b) Under section 1921 of ICWA, where applicable State or
other Federal law provides a higher standard of protection to
the rights of the parent or Indian custodian than the protection
accorded under the Act, ICWA requires the State or Federal
court to apply the higher State or Federal standard.
Pretrial Requirements
§23.107 How should a State court determine if there is
reason to know the child is an Indian child?
(a) State courts must ask each participant in an emergency or
voluntary or involuntary child-custody proceeding whether the
participant knows or has reason to know that the child is an
Indian child. The inquiry is made at the commencement of the
proceeding and all responses should be on the record. State
courts must instruct the parties to inform the court if they
subsequently receive information that provides reason to know
the child is an Indian child.
untary or involuntary child-custody proceeding whether the
participant knows or has reason to know that the child is an
Indian child. The inquiry is made at the commencement of the
proceeding and all responses should be on the record. State
courts must instruct the parties to inform the court if they
subsequently receive information that provides reason to know
the child is an Indian child.
(b) If there is reason to know the child is an Indian child, but
the court does not have sufficient evidence to determine that
the child is or is not an “Indian child,” the court must:
(1) Confirm, by way of a report, declaration, or testimony
included in the record that the agency or other party used due
diligence to identify and work with all of the Tribes of which
there is reason to know the child may be a member (or eligible
for membership), to verify whether the child is in fact a
member (or a biological parent is a member and the child is
eligible for membership); and
(2) Treat the child as an Indian child, unless and until it is
determined on the record that the child does not meet the
definition of an “Indian child” in this part.
(c) A court, upon conducting the inquiry required in paragraph
(a) of this section, has reason to know that a child involved in
an emergency or child-custody proceeding is an Indian child if:
(1) Any participant in the proceeding, officer of the court
involved in the proceeding, Indian Tribe, Indian organization,
or agency informs the court that the child is an Indian child;
(2) Any participant in the proceeding, officer of the court
involved in the proceeding, Indian Tribe, Indian organization,
or agency informs the court that it has discovered information
indicating that the child is an Indian child;
(3) The child who is the subject of the proceeding gives the
court reason to know he or she is an Indian child;
orms the court that the child is an Indian child;
(2) Any participant in the proceeding, officer of the court
involved in the proceeding, Indian Tribe, Indian organization,
or agency informs the court that it has discovered information
indicating that the child is an Indian child;
(3) The child who is the subject of the proceeding gives the
court reason to know he or she is an Indian child;
(4) The court is informed that the domicile or residence of the
child, the child's parent, or the child's Indian custodian is on a
reservation or in an Alaska Native village;
(5) The court is informed that the child is or has been a ward of
a Tribal court; or
(6) The court is informed that either parent or the child
possesses an identification card indicating membership in an
Indian Tribe.
(d) In seeking verification of the child's status in a voluntary
proceeding where a consenting parent evidences, by written
request or statement in the record, a desire for anonymity, the
court must keep relevant documents pertaining to the inquiry
required under this section confidential and under seal. A
request for anonymity does not relieve the court, agency, or
other party from any duty of compliance with ICWA,
including the obligation to verify whether the child is an
“Indian child.” A Tribe receiving information related to this
inquiry must keep documents and information confidential.
§23.108 Who makes the determination as to whether a
child is a member, whether a child is eligible for
membership, or whether a biological parent is a member of
a Tribe?
(a) The Indian Tribe of which it is believed the child is a
member (or eligible for membership and of which the
biological parent is a member) determines whether the child is
a member of the Tribe, or whether the child is eligible for
membership in the Tribe and a biological parent of the child is
a member of the Tribe, except as otherwise provided by
Federal or Tribal law.
er of
a Tribe?
(a) The Indian Tribe of which it is believed the child is a
member (or eligible for membership and of which the
biological parent is a member) determines whether the child is
a member of the Tribe, or whether the child is eligible for
membership in the Tribe and a biological parent of the child is
a member of the Tribe, except as otherwise provided by
Federal or Tribal law.
(b) The determination by a Tribe of whether a child is a
member, whether a child is eligible for membership, or
whether a biological parent is a member, is solely within the
jurisdiction and authority of the Tribe, except as otherwise
provided by Federal or Tribal law. The State court may not
substitute
its
own
determination
regarding
a
child's
membership in a Tribe, a child's eligibility for membership in a
Tribe, or a parent's membership in a Tribe.
(c) The State court may rely on facts or documentation
indicating a Tribal determination of membership or eligibility
for membership in making a judicial determination as to
whether the child is an “Indian child.” An example of
documentation indicating membership is a document issued by
the Tribe, such as Tribal enrollment documentation.
§23.109 How should a State court determine an Indian
child's Tribe when the child may be a member or eligible
for membership in more than one Tribe?
(a) If the Indian child is a member or eligible for membership
in only one Tribe, that Tribe must be designated as the Indian
child's Tribe.
(b) If the Indian child meets the definition of “Indian child”
through more than one Tribe, deference should be given to the
Tribe in which the Indian child is already a member, unless
otherwise agreed to by the Tribes.
bership in more than one Tribe?
(a) If the Indian child is a member or eligible for membership
in only one Tribe, that Tribe must be designated as the Indian
child's Tribe.
(b) If the Indian child meets the definition of “Indian child”
through more than one Tribe, deference should be given to the
Tribe in which the Indian child is already a member, unless
otherwise agreed to by the Tribes.
(c) If an Indian child meets the definition of “Indian child”
through more than one Tribe because the child is a member in
more than one Tribe or the child is not a member of but is
eligible for membership in more than one Tribe, the court must
provide the opportunity in any involuntary child-custody
proceeding for the Tribes to determine which should be
designated as the Indian child's Tribe.
(1) If the Tribes are able to reach an agreement, the agreed-
upon Tribe should be designated as the Indian child's Tribe.
(2) If the Tribes are unable to reach an agreement, the State
court designates, for the purposes of ICWA, the Indian Tribe
with which the Indian child has the more significant contacts
as the Indian child's Tribe, taking into consideration:
(i) Preference of the parents for membership of the child;
(ii) Length of past domicile or residence on or near the
reservation of each Tribe;
(iii) Tribal membership of the child's custodial parent or Indian
custodian; and
(iv) Interest asserted by each Tribe in the child-custody
proceeding;
n child has the more significant contacts
as the Indian child's Tribe, taking into consideration:
(i) Preference of the parents for membership of the child;
(ii) Length of past domicile or residence on or near the
reservation of each Tribe;
(iii) Tribal membership of the child's custodial parent or Indian
custodian; and
(iv) Interest asserted by each Tribe in the child-custody
proceeding;
(v) Whether there has been a previous adjudication with
respect to the child by a court of one of the Tribes; and
(vi) Self-identification by the child, if the child is of sufficient
age and capacity to meaningfully self-identify.
(3) A determination of the Indian child's Tribe for purposes of
ICWA and the regulations in this subpart do not constitute a
determination for any other purpose
§23.110 When must a State court dismiss an action?
Subject to 25 U.S.C. 1919 (Agreements between States and
Indian Tribes) and §23.113 (emergency proceedings), the
following limitations on a State court's jurisdiction apply:
(a) The court in any voluntary or involuntary child-custody
proceeding involving an Indian child must determine the
residence and domicile of the Indian child. If either the
residence or domicile is on a reservation where the Tribe
exercises
exclusive
jurisdiction
over
child-custody
proceedings, the State court must expeditiously notify the
Tribal court of the pending dismissal based on the Tribe's
exclusive jurisdiction, dismiss the State-court child-custody
proceeding, and ensure that the Tribal court is sent all
information regarding the Indian child-custody proceeding,
including, but not limited to, the pleadings and any court
record.
sdiction
over
child-custody
proceedings, the State court must expeditiously notify the
Tribal court of the pending dismissal based on the Tribe's
exclusive jurisdiction, dismiss the State-court child-custody
proceeding, and ensure that the Tribal court is sent all
information regarding the Indian child-custody proceeding,
including, but not limited to, the pleadings and any court
record.
(b) If the child is a ward of a Tribal court, the State court must
expeditiously notify the Tribal court of the pending dismissal,
dismiss the State-court child-custody proceeding, and ensure
that the Tribal court is sent all information regarding the Indian
child-custody proceeding, including, but not limited to, the
pleadings and any court record.
§23.111 What are the notice requirements for a child-
custody proceeding involving an Indian child?
(a) When a court knows or has reason to know that the subject
of an involuntary foster-care-placement or termination-of-
parental-rights proceeding is an Indian child, the court must
ensure that:
(1) The party seeking placement promptly sends notice of each
such child-custody proceeding (including, but not limited to,
any foster-care placement or any termination of parental or
custodial rights) in accordance with this section; and
(2) An original or a copy of each notice sent under this section
is filed with the court together with any return receipts or other
proof of service.
(b) Notice must be sent to:
(1) Each Tribe where the child may be a member (or eligible
for membership if a biological parent is a member) (see
§23.105 for information on how to contact a Tribe);
(2) The child's parents; and
(3) If applicable, the child's Indian custodian.
(c) Notice must be sent by registered or certified mail with
return receipt requested. Notice may also be sent via personal
service or electronically, but such alternative methods do not
replace the requirement for notice to be sent by registered or
certified mail with return receipt requested.
contact a Tribe);
(2) The child's parents; and
(3) If applicable, the child's Indian custodian.
(c) Notice must be sent by registered or certified mail with
return receipt requested. Notice may also be sent via personal
service or electronically, but such alternative methods do not
replace the requirement for notice to be sent by registered or
certified mail with return receipt requested.
(d) Notice must be in clear and understandable language and
include the following:
(1) The child's name, birthdate, and birthplace;
(2) All names known (including maiden, married, and former
names or aliases) of the parents, the parents' birthdates and
birthplaces, and Tribal enrollment numbers if known;
(3) If known, the names, birthdates, birthplaces, and Tribal
enrollment information of other direct lineal ancestors of the
child, such as grandparents;
(4) The name of each Indian Tribe in which the child is a
member (or may be eligible for membership if a biological
parent is a member);
(5) A copy of the petition, complaint, or other document by
which the child-custody proceeding was initiated and, if a
hearing has been scheduled, information on the date, time, and
location of the hearing;
(6) Statements setting out:
(i) The name of the petitioner and the name and address of
petitioner's attorney;
(ii) The right of any parent or Indian custodian of the
child, if not already a party to the child-custody proceeding, to
intervene in the proceedings.
(iii) The Indian Tribe's right to intervene at any time in a
State-court proceeding for the foster-care placement of or
termination of parental rights to an Indian child.
(iv) That, if the child's parent or Indian custodian is unable
to afford counsel based on a determination of indigency by the
court, the parent or Indian custodian has the right to court-
appointed counsel.
he proceedings.
(iii) The Indian Tribe's right to intervene at any time in a
State-court proceeding for the foster-care placement of or
termination of parental rights to an Indian child.
(iv) That, if the child's parent or Indian custodian is unable
to afford counsel based on a determination of indigency by the
court, the parent or Indian custodian has the right to court-
appointed counsel.
(v) The right to be granted, upon request, up to 20
additional days to prepare for the child-custody proceedings.
(vi) The right of the parent or Indian custodian and the
Indian child's Tribe to petition the court for transfer of the
foster-care-placement
or
termination-of-parental-rights
proceeding to Tribal court as provided by 25 U.S.C. 1911 and
§23.115.
(vii) The mailing addresses and telephone numbers of the
court and information related to all parties to the child-custody
proceeding and individuals notified under this section.
(viii) The potential legal consequences of the child-
custody proceedings on the future parental and custodial rights
of the parent or Indian custodian.
(ix) That all parties notified must keep confidential the
information contained in the notice and the notice should not
be handled by anyone not needing the information to exercise
rights under ICWA.
(e) If the identity or location of the child's parents, the child's
Indian custodian, or the Tribes in which the Indian child is a
member or eligible for membership cannot be ascertained, but
there is reason to know the child is an Indian child, notice of
the child-custody proceeding must be sent to the appropriate
Bureau of Indian Affairs Regional Director (see www.bia.gov).
To establish Tribal identity, as much information as is known
regarding the child's direct lineal ancestors should be provided.
The Bureau of Indian Affairs will not make a determination of
Tribal membership but may, in some instances, be able to
identify Tribes to contact.
child-custody proceeding must be sent to the appropriate
Bureau of Indian Affairs Regional Director (see www.bia.gov).
To establish Tribal identity, as much information as is known
regarding the child's direct lineal ancestors should be provided.
The Bureau of Indian Affairs will not make a determination of
Tribal membership but may, in some instances, be able to
identify Tribes to contact.
(f) If there is a reason to know that a parent or Indian custodian
possesses limited English proficiency and is therefore not
likely to understand the contents of the notice, the court must
provide language access services as required by Title VI of the
Civil Rights Act and other Federal laws. To secure such
translation or interpretation support, a court may contact or
direct a party to contact the Indian child's Tribe or the local
BIA office for assistance in locating and obtaining the name of
a qualified translator or interpreter.
(g) If a parent or Indian custodian of an Indian child appears in
court without an attorney, the court must inform him or her of
his or her rights, including any applicable right to appointed
counsel, right to request that the child-custody proceeding be
transferred to Tribal court, right to object to such transfer, right
to request additional time to prepare for the child-custody
proceeding as provided in §23.112, and right (if the parent or
Indian custodian is not already a party) to intervene in the
child-custody proceedings.
§23.112 What time limits and extensions apply?
(a) No foster-care-placement or termination-of-parental-rights
proceeding may be held until at least 10 days after receipt of
the notice by the parent (or Indian custodian) and by the Tribe
(or the Secretary). The parent, Indian custodian, and Tribe each
have a right, upon request, to be granted up to 20 additional
days from the date upon which notice was received to prepare
for participation in the proceeding.
acement or termination-of-parental-rights
proceeding may be held until at least 10 days after receipt of
the notice by the parent (or Indian custodian) and by the Tribe
(or the Secretary). The parent, Indian custodian, and Tribe each
have a right, upon request, to be granted up to 20 additional
days from the date upon which notice was received to prepare
for participation in the proceeding.
(b) Except as provided in 25 U.S.C. 1922 and §23.113, no
child-custody proceeding for foster-care placement or
termination of parental rights may be held until the waiting
periods to which the parents or Indian custodians and to which
the Indian child's Tribe are entitled have expired, as follows:
(1) 10 days after each parent or Indian custodian (or Secretary
where the parent or Indian custodian is unknown to the
petitioner) has received notice of that particular child-custody
proceeding in accordance with 25 U.S.C. 1912(a) and §23.111;
(2) 10 days after the Indian child's Tribe (or the Secretary if the
Indian child's Tribe is unknown to the party seeking
placement) has received notice of that particular child-custody
proceeding in accordance with 25 U.S.C. 1912(a) and §23.111;
(3) Up to 30 days after the parent or Indian custodian has
received notice of that particular child-custody proceeding in
accordance with 25 U.S.C. 1912(a) and §23.111, if the parent
or Indian custodian has requested up to 20 additional days to
prepare for the child-custody proceeding as provided in 25
U.S.C. 1912(a) and §23.111; and
(4) Up to 30 days after the Indian child's Tribe has received
notice of that particular child-custody proceeding in
accordance with 25 U.S.C. 1912(a) and §23.111, if the Indian
child's Tribe has requested up to 20 additional days to prepare
for the child-custody proceeding.
p to 20 additional days to
prepare for the child-custody proceeding as provided in 25
U.S.C. 1912(a) and §23.111; and
(4) Up to 30 days after the Indian child's Tribe has received
notice of that particular child-custody proceeding in
accordance with 25 U.S.C. 1912(a) and §23.111, if the Indian
child's Tribe has requested up to 20 additional days to prepare
for the child-custody proceeding.
(c) Additional time beyond the minimum required by 25
U.S.C. 1912 and §23.111 may also be available under State
law or pursuant to extensions granted by the court.
§23.113 What
are
the
standards
for
emergency
proceedings involving an Indian child?
(a) Any emergency removal or placement of an Indian child
under State law must terminate immediately when the removal
or placement is no longer necessary to prevent imminent
physical damage or harm to the child.
(b) The State court must:
(1) Make a finding on the record that the emergency removal
or placement is necessary to prevent imminent physical
damage or harm to the child;
(2) Promptly hold a hearing on whether the emergency
removal or placement continues to be necessary whenever new
information indicates that the emergency situation has ended;
and
(3) At any court hearing during the emergency proceeding,
determine whether the emergency removal or placement is no
longer necessary to prevent imminent physical damage or harm
to the child.
(4) Immediately terminate (or ensure that the agency
immediately terminates) the emergency proceeding once the
court or agency possesses sufficient evidence to determine that
the emergency removal or placement is no longer necessary to
prevent imminent physical damage or harm to the child.
(c) An emergency proceeding can be terminated by one or
more of the following actions:
(1) Initiation of a child-custody proceeding subject to the
provisions of ICWA;
(2) Transfer of the child to the jurisdiction of the appropriate
Indian Tribe; or
(3) Restoring the child to the parent or Indian custodian.
nt is no longer necessary to
prevent imminent physical damage or harm to the child.
(c) An emergency proceeding can be terminated by one or
more of the following actions:
(1) Initiation of a child-custody proceeding subject to the
provisions of ICWA;
(2) Transfer of the child to the jurisdiction of the appropriate
Indian Tribe; or
(3) Restoring the child to the parent or Indian custodian.
(d) A petition for a court order authorizing the emergency
removal
or
continued
emergency
placement,
or
its
accompanying documents, should contain a statement of the
risk of imminent physical damage or harm to the Indian child
and any evidence that the emergency removal or placement
continues to be necessary to prevent such imminent physical
damage or harm to the child. The petition or its accompanying
documents should also contain the following information:
(1) The name, age, and last known address of the Indian child;
(2) The name and address of the child's parents and Indian
custodians, if any;
(3) The steps taken to provide notice to the child's parents,
custodians, and Tribe about the emergency proceeding;
(4) If the child's parents and Indian custodians are unknown, a
detailed explanation of what efforts have been made to locate
and contact them, including contact with the appropriate BIA
Regional Director (see www.bia.gov);
(5) The residence and the domicile of the Indian child;
(6) If either the residence or the domicile of the Indian child is
believed to be on a reservation or in an Alaska Native village,
the name of the Tribe affiliated with that reservation or village;
(7) The Tribal affiliation of the child and of the parents or
Indian custodians;
(8) A specific and detailed account of the circumstances that
led the agency responsible for the emergency removal of the
child to take that action;
domicile of the Indian child is
believed to be on a reservation or in an Alaska Native village,
the name of the Tribe affiliated with that reservation or village;
(7) The Tribal affiliation of the child and of the parents or
Indian custodians;
(8) A specific and detailed account of the circumstances that
led the agency responsible for the emergency removal of the
child to take that action;
(9) If the child is believed to reside or be domiciled on a
reservation where the Tribe exercises exclusive jurisdiction
over child-custody matters, a statement of efforts that have
been made and are being made to contact the Tribe and
transfer the child to the Tribe's jurisdiction; and
(10) A statement of the efforts that have been taken to assist
the parents or Indian custodians so the Indian child may safely
be returned to their custody.
(e) An emergency proceeding regarding an Indian child should
not be continued for more than 30 days unless the court makes
the following determinations:
(1) Restoring the child to the parent or Indian custodian would
subject the child to imminent physical damage or harm;
(2) The court has been unable to transfer the proceeding to the
jurisdiction of the appropriate Indian Tribe; and
(3) It has not been possible to initiate a “child-custody
proceeding” as defined in §23.2.
§23.114 What are the requirements for determining
improper removal?
(a) If, in the course of any child-custody proceeding, any party
asserts or the court has reason to believe that the Indian child
may have been improperly removed from the custody of his or
her parent or Indian custodian, or that the Indian child has been
improperly retained (such as after a visit or other temporary
relinquishment of custody), the court must expeditiously
determine whether there was improper removal or retention.
dy proceeding, any party
asserts or the court has reason to believe that the Indian child
may have been improperly removed from the custody of his or
her parent or Indian custodian, or that the Indian child has been
improperly retained (such as after a visit or other temporary
relinquishment of custody), the court must expeditiously
determine whether there was improper removal or retention.
(b) If the court finds that the Indian child was improperly
removed or retained, the court must terminate the proceeding
and the child must be returned immediately to his or her parent
or Indian custodian, unless returning the child to his parent or
Indian custodian would subject the child to substantial and
immediate danger or threat of such danger
Petitions To Transfer to Tribal Court
§23.115 How are petitions for transfer of a proceeding
made?
(a) Either parent, the Indian custodian, or the Indian child's
Tribe may request, at any time, orally on the record or in
writing, that the State court transfer a foster-care or
termination-of-parental-rights proceeding to the jurisdiction of
the child's Tribe.
(b) The right to request a transfer is available at any stage in
each foster-care or termination-of-parental-rights proceeding.
§23.116 What happens after a petition for transfer is
made?
Upon receipt of a transfer petition, the State court must ensure
that the Tribal court is promptly notified in writing of the
transfer petition. This notification may request a timely
response regarding whether the Tribal court wishes to decline
the transfer.
§23.117 What are the criteria for ruling on transfer
petitions?
Upon receipt of a transfer petition from an Indian child's
parent, Indian custodian, or Tribe, the State court must transfer
the child-custody proceeding unless the court determines that
transfer is not appropriate because one or more of the
following criteria are met:
(a) Either parent objects to such transfer;
(b) The Tribal court declines the transfer; or
ruling on transfer
petitions?
Upon receipt of a transfer petition from an Indian child's
parent, Indian custodian, or Tribe, the State court must transfer
the child-custody proceeding unless the court determines that
transfer is not appropriate because one or more of the
following criteria are met:
(a) Either parent objects to such transfer;
(b) The Tribal court declines the transfer; or
(c) Good cause exists for denying the transfer.
§23.118 How is a determination of “good cause” to deny
transfer made?
(a) If the State court believes, or any party asserts, that good
cause to deny transfer exists, the reasons for that belief or
assertion must be stated orally on the record or provided in
writing on the record and to the parties to the child-custody
proceeding.
(b) Any party to the child-custody proceeding must have the
opportunity to provide the court with views regarding whether
good cause to deny transfer exists.
(c) In determining whether good cause exists, the court must
not consider:
(1) Whether the foster-care or termination-of-parental-rights
proceeding is at an advanced stage if the Indian child's parent,
Indian custodian, or Tribe did not receive notice of the child-
custody proceeding until an advanced stage;
(2) Whether there have been prior proceedings involving the
child for which no petition to transfer was filed;
(3) Whether transfer could affect the placement of the child;
(4) The Indian child's cultural connections with the Tribe or its
reservation; or
(5) Socioeconomic conditions or any negative perception of
Tribal or BIA social services or judicial systems.
(d) The basis for any State-court decision to deny transfer
should be stated orally on the record or in a written order.
§23.119 What happens after a petition for transfer is
granted?
t of the child;
(4) The Indian child's cultural connections with the Tribe or its
reservation; or
(5) Socioeconomic conditions or any negative perception of
Tribal or BIA social services or judicial systems.
(d) The basis for any State-court decision to deny transfer
should be stated orally on the record or in a written order.
§23.119 What happens after a petition for transfer is
granted?
(a) If the Tribal court accepts the transfer, the State court
should expeditiously provide the Tribal court with all records
related to the proceeding, including, but not limited to, the
pleadings and any court record.
(b) The State court should work with the Tribal court to ensure
that the transfer of the custody of the Indian child and of the
proceeding is accomplished smoothly and in a way that
minimizes the disruption of services to the family.
Adjudication of Involuntary Proceedings
§23.120 How does the State court ensure that active
efforts have been made?
(a) Prior to ordering an involuntary foster-care placement or
termination of parental rights, the court must conclude that
active efforts have been made to prevent the breakup of the
Indian family and that those efforts have been unsuccessful.
(b) Active efforts must be documented in detail in the record.
§23.121 What are the applicable standards of evidence?
(a) The court must not order a foster-care placement of an
Indian child unless clear and convincing evidence is presented,
including the testimony of one or more qualified expert
witnesses, demonstrating that the child's continued custody by
the child's parent or Indian custodian is likely to result in
serious emotional or physical damage to the child.
the applicable standards of evidence?
(a) The court must not order a foster-care placement of an
Indian child unless clear and convincing evidence is presented,
including the testimony of one or more qualified expert
witnesses, demonstrating that the child's continued custody by
the child's parent or Indian custodian is likely to result in
serious emotional or physical damage to the child.
(b) The court must not order a termination of parental rights
for an Indian child unless evidence beyond a reasonable doubt
is presented, including the testimony of one or more qualified
expert witnesses, demonstrating that the child's continued
custody by the child's parent or Indian custodian is likely to
result in serious emotional or physical damage to the child.
(c) For a foster-care placement or termination of parental
rights, the evidence must show a causal relationship between
the particular conditions in the home and the likelihood that
continued custody of the child will result in serious emotional
or physical damage to the particular child who is the subject of
the child-custody proceeding.
(d) Without a causal relationship identified in paragraph (c) of
this section, evidence that shows only the existence of
community or family poverty, isolation, single parenthood,
custodian age, crowded or inadequate housing, substance
abuse, or nonconforming social behavior does not by itself
constitute clear and convincing evidence or evidence beyond a
reasonable doubt that continued custody is likely to result in
serious emotional or physical damage to the child.
§23.122 Who may serve as a qualified expert witness?
or family poverty, isolation, single parenthood,
custodian age, crowded or inadequate housing, substance
abuse, or nonconforming social behavior does not by itself
constitute clear and convincing evidence or evidence beyond a
reasonable doubt that continued custody is likely to result in
serious emotional or physical damage to the child.
§23.122 Who may serve as a qualified expert witness?
(a) A qualified expert witness must be qualified to testify
regarding whether the child's continued custody by the parent
or Indian custodian is likely to result in serious emotional or
physical damage to the child and should be qualified to testify
as to the prevailing social and cultural standards of the Indian
child's Tribe. A person may be designated by the Indian child's
Tribe as being qualified to testify to the prevailing social and
cultural standards of the Indian child's Tribe.
(b) The court or any party may request the assistance of the
Indian child's Tribe or the BIA office serving the Indian child's
Tribe in locating persons qualified to serve as expert witnesses.
(c) The social worker regularly assigned to the Indian child
may not serve as a qualified expert witness in child-custody
proceedings concerning the child.
§23.123 [Reserved]
Voluntary Proceedings
§23.124 What actions must a State court undertake in
voluntary proceedings?
(a) The State court must require the participants in a voluntary
proceeding to state on the record whether the child is an Indian
child, or whether there is reason to believe the child is an
Indian child, as provided in §23.107.
ld-custody
proceedings concerning the child.
§23.123 [Reserved]
Voluntary Proceedings
§23.124 What actions must a State court undertake in
voluntary proceedings?
(a) The State court must require the participants in a voluntary
proceeding to state on the record whether the child is an Indian
child, or whether there is reason to believe the child is an
Indian child, as provided in §23.107.
(b) If there is reason to believe the child is an Indian child, the
State court must ensure that the party seeking placement has
taken all reasonable steps to verify the child's status. This may
include contacting the Tribe of which it is believed the child is
a member (or eligible for membership and of which the
biological parent is a member) to verify the child's status. As
described in §23.107, where a consenting parent requests
anonymity, a Tribe receiving such information must keep
relevant documents and information confidential.
(c) State courts must ensure that the placement for the Indian
child complies with §§23.129-23.132.
§23.125 How is consent obtained?
(a) A parent's or Indian custodian's consent to a voluntary
termination of parental rights or to a foster-care, preadoptive,
or adoptive placement must be executed in writing and
recorded before a court of competent jurisdiction.
(b) Prior to accepting the consent, the court must explain to the
parent or Indian custodian:
(1) The terms and consequences of the consent in detail; and
(2) The following limitations, applicable to the type of child-
custody proceeding for which consent is given, on withdrawal
of consent:
adoptive placement must be executed in writing and
recorded before a court of competent jurisdiction.
(b) Prior to accepting the consent, the court must explain to the
parent or Indian custodian:
(1) The terms and consequences of the consent in detail; and
(2) The following limitations, applicable to the type of child-
custody proceeding for which consent is given, on withdrawal
of consent:
(i) For consent to foster-care placement, the parent or
Indian custodian may withdraw consent for any reason, at any
time, and have the child returned; or
(ii) For consent to termination of parental rights, the
parent or Indian custodian may withdraw consent for any
reason, at any time prior to the entry of the final decree of
termination and have the child returned; or
(iii) For consent to an adoptive placement, the parent or
Indian custodian may withdraw consent for any reason, at any
time prior to the entry of the final decree of adoption, and have
the child returned.
(c) The court must certify that the terms and consequences of
the consent were explained on the record in detail in English
(or the language of the parent or Indian custodian, if English is
not the primary language) and were fully understood by the
parent or Indian custodian.
(d) Where confidentiality is requested or indicated, execution
of consent need not be made in a session of court open to the
public but still must be made before a court of competent
jurisdiction in compliance with this section.
(e) A consent given prior to, or within 10 days after, the birth
of an Indian child is not valid.
§23.126 What information must a consent document
contain?
(a) If there are any conditions to the consent, the written
consent must clearly set out the conditions.
ssion of court open to the
public but still must be made before a court of competent
jurisdiction in compliance with this section.
(e) A consent given prior to, or within 10 days after, the birth
of an Indian child is not valid.
§23.126 What information must a consent document
contain?
(a) If there are any conditions to the consent, the written
consent must clearly set out the conditions.
(b) A written consent to foster-care placement should contain,
in addition to the information specified in paragraph (a) of this
section, the name and birthdate of the Indian child; the name of
the Indian child's Tribe; the Tribal enrollment number for the
parent and for the Indian child, where known, or some other
indication of the child's membership in the Tribe; the name,
address, and other identifying information of the consenting
parent or Indian custodian; the name and address of the person
or entity, if any, who arranged the placement; and the name
and address of the prospective foster parents, if known at the
time.
§23.127 How is withdrawal of consent to a foster-care
placement achieved?
(a) The parent or Indian custodian may withdraw consent to
voluntary foster-care placement at any time.
(b) To withdraw consent, the parent or Indian custodian must
file a written document with the court or otherwise testify
before the court. Additional methods of withdrawing consent
may be available under State law.
(c) When a parent or Indian custodian withdraws consent to a
voluntary foster-care placement, the court must ensure that the
Indian child is returned to that parent or Indian custodian as
soon as practicable.
§23.128 How is withdrawal of consent to a termination of
parental rights or adoption achieved?
(a) A parent may withdraw consent to voluntary termination of
parental rights at any time prior to the entry of a final decree of
termination.
(b) A parent or Indian custodian may withdraw consent to
voluntary adoption at any time prior to the entry of a final
decree of adoption.
as practicable.
§23.128 How is withdrawal of consent to a termination of
parental rights or adoption achieved?
(a) A parent may withdraw consent to voluntary termination of
parental rights at any time prior to the entry of a final decree of
termination.
(b) A parent or Indian custodian may withdraw consent to
voluntary adoption at any time prior to the entry of a final
decree of adoption.
(c) To withdraw consent prior to the entry of a final decree of
adoption, the parent or Indian custodian must file a written
document with the court or otherwise testify before the court.
Additional methods of withdrawing consent may be available
under State law.
(d) The court in which the withdrawal of consent is filed must
promptly notify the person or entity who arranged any
voluntary preadoptive or adoptive placement of such filing,
and the Indian child must be returned to the parent or Indian
custodian as soon as practicable.
Dispositions
§23.129 When do the placement preferences apply?
(a) In any preadoptive, adoptive, or foster-care placement of an
Indian child, the placement preferences specified in §23.130
and §23.131 apply.
(b) Where a consenting parent requests anonymity in a
voluntary proceeding, the court must give weight to the request
in applying the preferences.
(c) The placement preferences must be applied in any foster-
care, preadoptive, or adoptive placement unless there is a
determination on the record that good cause under §23.132
exists to not apply those placement preferences.
§23.130 What placement preferences apply in adoptive
placements?
(a) In any adoptive placement of an Indian child under State
law, where the Indian child's Tribe has not established a
different order of preference under paragraph (b) of this
section, preference must be given in descending order, as listed
below, to placement of the child with:
(1) A member of the Indian child's extended family;
(2) Other members of the Indian child's Tribe; or
(3) Other Indian families.
ve placement of an Indian child under State
law, where the Indian child's Tribe has not established a
different order of preference under paragraph (b) of this
section, preference must be given in descending order, as listed
below, to placement of the child with:
(1) A member of the Indian child's extended family;
(2) Other members of the Indian child's Tribe; or
(3) Other Indian families.
(b) If the Indian child's Tribe has established by resolution a
different order of preference than that specified in ICWA, the
Tribe's placement preferences apply.
(c) The court must, where appropriate, also consider the
placement preference of the Indian child or Indian child's
parent.
§23.131 What placement preferences apply in foster-care
or preadoptive placements?
(a) In any foster-care or preadoptive placement of an Indian
child under State law, including changes in foster-care or
preadoptive placements, the child must be placed in the least-
restrictive setting that:
(1) Most approximates a family, taking into consideration
sibling attachment;
(2) Allows the Indian child's special needs (if any) to be met;
and
(3) Is in reasonable proximity to the Indian child's home,
extended family, or siblings.
(b) In any foster-care or preadoptive placement of an Indian
child under State law, where the Indian child's Tribe has not
established a different order of preference under paragraph (c)
of this section, preference must be given, in descending order
as listed below, to placement of the child with:
(1) A member of the Indian child's extended family;
(2) A foster home that is licensed, approved, or specified by
the Indian child's Tribe;
(3) An Indian foster home licensed or approved by an
authorized non-Indian licensing authority; or
(4) An institution for children approved by an Indian Tribe or
operated by an Indian organization which has a program
suitable to meet the child's needs.
(1) A member of the Indian child's extended family;
(2) A foster home that is licensed, approved, or specified by
the Indian child's Tribe;
(3) An Indian foster home licensed or approved by an
authorized non-Indian licensing authority; or
(4) An institution for children approved by an Indian Tribe or
operated by an Indian organization which has a program
suitable to meet the child's needs.
(c) If the Indian child's Tribe has established by resolution a
different order of preference than that specified in ICWA, the
Tribe's placement preferences apply, so long as the placement
is the least-restrictive setting appropriate to the particular needs
of the Indian child, as provided in paragraph (a) of this section.
(d) The court must, where appropriate, also consider the
preference of the Indian child or the Indian child's parent.
§23.132 How is a determination of “good cause” to depart
from the placement preferences made?
(a) If any party asserts that good cause not to follow the
placement preferences exists, the reasons for that belief or
assertion must be stated orally on the record or provided in
writing to the parties to the child-custody proceeding and the
court.
(b) The party seeking departure from the placement
preferences should bear the burden of proving by clear and
convincing evidence that there is “good cause” to depart from
the placement preferences.
(c) A court's determination of good cause to depart from the
placement preferences must be made on the record or in
writing and should be based on one or more of the following
considerations:
(1) The request of one or both of the Indian child's parents, if
they attest that they have reviewed the placement options, if
any, that comply with the order of preference;
(2) The request of the child, if the child is of sufficient age and
capacity to understand the decision that is being made;
(3) The presence of a sibling attachment that can be maintained
only through a particular placement;
he request of one or both of the Indian child's parents, if
they attest that they have reviewed the placement options, if
any, that comply with the order of preference;
(2) The request of the child, if the child is of sufficient age and
capacity to understand the decision that is being made;
(3) The presence of a sibling attachment that can be maintained
only through a particular placement;
(4) The extraordinary physical, mental, or emotional needs of
the Indian child, such as specialized treatment services that
may be unavailable in the community where families who
meet the placement preferences live;
(5) The unavailability of a suitable placement after a
determination by the court that a diligent search was conducted
to find suitable placements meeting the preference criteria, but
none has been located. For purposes of this analysis, the
standards for determining whether a placement is unavailable
must conform to the prevailing social and cultural standards of
the Indian community in which the Indian child's parent or
extended family resides or with which the Indian child's parent
or extended family members maintain social and cultural ties.
(d) A placement may not depart from the preferences based on
the socioeconomic status of any placement relative to another
placement.
(e) A placement may not depart from the preferences based
solely on ordinary bonding or attachment that flowed from
time spent in a non-preferred placement that was made in
violation of ICWA.
Access
§23.133 Should courts allow participation by alternative
methods?
If it possesses the capability, the court should allow alternative
methods
of
participation
in
State-court
child-custody
proceedings involving an Indian child, such as participation by
telephone, videoconferencing, or other methods
from
time spent in a non-preferred placement that was made in
violation of ICWA.
Access
§23.133 Should courts allow participation by alternative
methods?
If it possesses the capability, the court should allow alternative
methods
of
participation
in
State-court
child-custody
proceedings involving an Indian child, such as participation by
telephone, videoconferencing, or other methods.
§23.134 Who has access to reports and records during a
proceeding?
Each party to an emergency proceeding or a foster-care-
placement or termination-of-parental-rights proceeding under
State law involving an Indian child has a right to timely
examine all reports and other documents filed or lodged with
the court upon which any decision with respect to such action
may be based.
§23.135 [Reserved]
Post-Trial Rights & Responsibilities
§23.136 What are the requirements for vacating an
adoption based on consent having been obtained through
fraud or duress?
(a) Within two years after a final decree of adoption of any
Indian child by a State court, or within any longer period of
time permitted by the law of the State, the State court may
invalidate the voluntary adoption upon finding that the parent's
consent was obtained by fraud or duress.
(b) Upon the parent's filing of a petition to vacate the final
decree of adoption of the parent's Indian child, the court must
give notice to all parties to the adoption proceedings and the
Indian child's Tribe and must hold a hearing on the petition.
(c) Where the court finds that the parent's consent was
obtained through fraud or duress, the court must vacate the
final decree of adoption, order the consent revoked, and order
that the child be returned to the parent.
§23.137 Who can petition to invalidate an action for
certain ICWA violations?
he adoption proceedings and the
Indian child's Tribe and must hold a hearing on the petition.
(c) Where the court finds that the parent's consent was
obtained through fraud or duress, the court must vacate the
final decree of adoption, order the consent revoked, and order
that the child be returned to the parent.
§23.137 Who can petition to invalidate an action for
certain ICWA violations?
(a) Any of the following may petition any court of competent
jurisdiction to invalidate an action for foster-care placement or
termination of parental rights under state law where it is
alleged that 25 U.S.C. 1911, 1912, or 1913 has been violated:
(1) An Indian child who is or was the subject of any action for
foster-care placement or termination of parental rights;
(2) A parent or Indian custodian from whose custody such
child was removed; and
(3) The Indian child's Tribe.
(b) Upon a showing that an action for foster-care placement or
termination of parental rights violated any provision of 25
U.S.C. 1911, 1912, or 1913, the court must determine whether
it is appropriate to invalidate the action.
(c) To petition for invalidation, there is no requirement that the
petitioner's rights under ICWA were violated; rather, a
petitioner may challenge the action based on any violations of
25 U.S.C. 1911, 1912, or 1913 during the course of the child-
custody proceeding.
§23.138 What are the rights to information about
adoptees' Tribal affiliations?
Upon application by an Indian who has reached age 18 who
was the subject of an adoptive placement, the court that
entered the final decree of adoption must inform such
individual of the Tribal affiliations, if any, of the individual's
biological parents and provide such other information
necessary to protect any rights, which may include Tribal
membership,
resulting
from
the
individual's
Tribal
relationship.
§23.139 Must notice be given of a change in an adopted
Indian child's status?
court that
entered the final decree of adoption must inform such
individual of the Tribal affiliations, if any, of the individual's
biological parents and provide such other information
necessary to protect any rights, which may include Tribal
membership,
resulting
from
the
individual's
Tribal
relationship.
§23.139 Must notice be given of a change in an adopted
Indian child's status?
(a) If an Indian child has been adopted, the court must notify,
by registered or certified mail with return receipt requested, the
child's biological parent or prior Indian custodian and the
Indian child's Tribe whenever:
(1) A final decree of adoption of the Indian child has been
vacated or set aside; or
(2) The adoptive parent has voluntarily consented to the
termination of his or her parental rights to the child.
(b) The notice must state the current name, and any former
name, of the Indian child, inform the recipient of the right to
petition for return of custody of the child, and provide
sufficient information to allow the recipient to participate in
any scheduled hearings.
(c) A parent or Indian custodian may waive his or her right to
such notice by executing a written waiver of notice and filing
the waiver with the court.
(1) Prior to accepting the waiver, the court must explain the
consequences of the waiver and explain how the waiver may
be revoked.
(2) The court must certify that the terms and consequences of
the waiver and how the waiver may be revoked were explained
in detail in English (or the language of the parent or Indian
custodian, if English is not the primary language), and were
fully understood by the parent or Indian custodian.
(3) Where confidentiality is requested or indicated, execution
of the waiver need not be made in a session of court open to
the public but still must be made before a court of competent
jurisdiction in compliance with this section.
English (or the language of the parent or Indian
custodian, if English is not the primary language), and were
fully understood by the parent or Indian custodian.
(3) Where confidentiality is requested or indicated, execution
of the waiver need not be made in a session of court open to
the public but still must be made before a court of competent
jurisdiction in compliance with this section.
(4) The biological parent or Indian custodian may revoke the
waiver at any time by filing with the court a written notice of
revocation.
(5) A revocation of the right to receive notice does not affect
any child-custody proceeding that was completed before the
filing of the notice of revocation.
Recordkeeping
§23.140 What information must States furnish to the
Bureau of Indian Affairs?
(a) Any State court entering a final adoption decree or order in
any voluntary or involuntary Indian-child adoptive placement
must furnish a copy of the decree or order within 30 days to
the Bureau of Indian Affairs, Chief, Division of Human
Services, 1849 C Street NW., Mail Stop 4513 MIB,
Washington, DC 20240, along with the following information,
in an envelope marked “Confidential”:
(1) Birth name and birthdate of the Indian child, and Tribal
affiliation and name of the Indian child after adoption;
(2) Names and addresses of the biological parents;
(3) Names and addresses of the adoptive parents;
(4) Name and contact information for any agency having files
or information relating to the adoption;
(5) Any affidavit signed by the biological parent or parents
asking that their identity remain confidential; and
(6) Any information relating to Tribal membership or
eligibility for Tribal membership of the adopted child.
(b) If a State agency has been designated as the repository for
all State-court adoption information and is fulfilling the duties
described in paragraph (a) of this section, the State courts in
that State need not fulfill those same duties.
§23.141 What records must the State maintain?
) Any information relating to Tribal membership or
eligibility for Tribal membership of the adopted child.
(b) If a State agency has been designated as the repository for
all State-court adoption information and is fulfilling the duties
described in paragraph (a) of this section, the State courts in
that State need not fulfill those same duties.
§23.141 What records must the State maintain?
(a) The State must maintain a record of every voluntary or
involuntary foster-care, preadoptive, and adoptive placement
of an Indian child and make the record available within 14
days of a request by an Indian child's Tribe or the Secretary.
(b) The record must contain, at a minimum, the petition or
complaint, all substantive orders entered in the child-custody
proceeding,
the
complete
record
of
the
placement
determination (including, but not limited to, the findings in the
court record and the social worker's statement), and, if the
placement departs from the placement preferences, detailed
documentation of the efforts to comply with the placement
preferences.
(c) A State agency or agencies may be designated to be the
repository for this information. The State court or agency
should notify the BIA whether these records are maintained
within the court system or by a State agency.
§23.142 How does the Paperwork Reduction Act affect
this subpart?
The collections of information contained in this part have been
approved by the Office of Management and Budget under 44
U.S.C. 3501 et seq. and assigned OMB Control Number 1076-
0186. Response is required to obtain a benefit. A Federal
agency may not conduct or sponsor, and you are not required
to respond to, a collection of information unless the form or
regulation requesting the information displays a currently valid
OMB Control Number. Send comments regarding this
collection of information, including suggestions for reducing
the burden, to the Information Collection Clearance Officer—
Indian Affairs, 1849 C Street NW., Washington, DC 20240
uct or sponsor, and you are not required
to respond to, a collection of information unless the form or
regulation requesting the information displays a currently valid
OMB Control Number. Send comments regarding this
collection of information, including suggestions for reducing
the burden, to the Information Collection Clearance Officer—
Indian Affairs, 1849 C Street NW., Washington, DC 20240.
Effective Date
§23.143 How does this subpart apply to pending
proceedings?
None of the provisions of this subpart affects a proceeding
under State law for foster-care placement, termination of
parental rights, preadoptive placement, or adoptive placement
that was initiated prior to December 12, 2016, but the
provisions of this subpart apply to any subsequent proceeding
in the same matter or subsequent proceedings affecting the
custody or placement of the same child.
Severability
§23.144 What happens if some portion of this part is held
to be invalid by a court of competent jurisdiction?
If any portion of this part is determined to be invalid by a court
of competent jurisdiction, the other portions of the part remain
in effect. For example, the Department has considered
separately whether the provisions of this part apply to
involuntary and voluntary proceedings; thus, if a particular
provision is held to be invalid as to one type of proceeding, it
is the Department's intent that it remains valid as to the other
type of proceeding.
CROSS REFERENCES FROM DELINQUENCY
AND CINA RULES TO PRIOR CHILDREN’S RULES
Delinquency
Rules
Children’s
Rules
CINA Rules
Children’s Rules
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3
4
5
6
7
8
9
10
11
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14
15
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26
27
1, 32
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12, 13
2
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6, 7
8, 10
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21
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27
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11
11, 14, 15
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12, 13
2
5
5, 6
8, 10
20
13, 17
7
11
11, 14, 15
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22
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.